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E 480 SPEECH 

.P88 
Copy 1 




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HON. L. W. POWELL, 



OF KENTUCKY, 



ON THE BILL 



TO CONFISCATE THE PROPERTY 



FREE THE SLAVES OF REBELS. 



DELIVERED 



IN THE SENATE OF THE UNITED STATES, 

APRIL 16, 1863. 



WASHINGTON: 

FEINTED BY L. TOWEEB & CO. 
' 18 62. 






West. Bee. Hiirt. Soo. 



■^ 



SPEECH 



HON. L. W. POWELL, 

OF KENTUCKY, 

ON 

THE CONFISCATION BILL. 



DELIVERED IN THE SENATE OF THE UNITED STATES, APRIL 16, 1862. 



The Senate having under consideration the bill (S. No. 151) to confiscate the property and free the 
•lares of rebels, Mr. POWELL said : 

Mr. President : It is seldom that any deliberative body has been called 
upon to consider a bill of such vast importance as the one now before us. The 
Senate of the United States has rarely, if ever, had under consideration a sub- 
ject of such vast and overwhelming magnitude. This Government is one of 
limited powers. All the power that can be legitimately exercised by any or all 
of its departments is derived from the Constitution. Whenever the legislative, 
the executive, or the judicial department claim the right to exercise power and 
it is challenged, they must show their constitutional warrant; they must show 
the grant of power either in express words or by necessary implication. The 
tenth article of the amendments to the Constitution declares that 

" The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, 
are reserved to the States respectively, or to the people." 

I might rest the argument here, being confident that those who advocate the 
passage of this bill can point to no clause in the Constitution that will author- 
ize its passage. I will proceed, however, to a brief examination of the bill and 
state to the Senate some of the reasons why, in my judgment, it should not 
pass. I will also cite the provisions of the Constitution that will be violated by 
its passage. The Constitution defines treason, and then gives to Congress the 
power to declare the punishment of treason ; and an act of Congress in 1790 
declared the punishment of treason to be death. I will read the clauses in 
the Constitution concerning treason : 

"Treason against the United States shall consist only in levying war against them, or in adhering to 
their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testi- 
mony of two witnesses to ihe same overt act, or in confession in open court." 

"The Congress shall have power to declare the punishment of treason, but no attainder of treason Aall 
■work corruption of blood, or forfeiture, except during the life of the person attainted.'' 

Under that clause of the Constitution, I hold that there can be no attainder 
or forfeiture of estate in consequence of treason except by judicial attainder, 
and then only for the life of the offender ; for the Constitution declares that 
"no bill of attainder or ex postfocto law shall be passed." The full and entire 
extent to which Congress can go, in the punishment of treason, so far as forfei- 
ture of estate is concerned, is, after judicial attainder, to forfeit or confiscate it 
during the lifetime of the individual convicted ; and it is only for treason aod 



its cognate offenses that that forfeiture, in my judgment, can take place under 
the Constitution. 

There is another clause of the Constitution to which I will call the attention 
of the Senate, and that is the fifth amendment : 

" No person ehall be held to answer for a capital or otherwise infamous crime unless on a presentment 
or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in 
actual service, in time of war or public danger ; nor shall any person be subject, for the same offense, to 
be twice put in jeopardy of life or limb fnor shall be C()m])elled, in any criminal ease, to be a witness 
against himself; nor be deprived of life, liberty, or property, without due process of law ; nor shall private 
property be taken for public use without juSt compensation." 

Those clauses when taken together, in my judgment, present an insur- 
mountable barrier to the passage of the first section of this bill. In order that 
I may present the bill fairly, I will read that section. It is in these words : 

" That the property, real and personal, of every kind whatsoever, both corporeal and incorporeal, and 
including choses in action, and wheresoever situated, within the limits of the United States, belonging to 
any person or persons beyond the jurisdiction of the same, or to any person or persons in any State or dis- 
trict wilhin the United States, now in a state of insurrection and rebellion against the authority thereof, 
eo that in either case the ordinary process of law cannot be served upon them, who shall during the pres- 
ent rebellion be found in arms against the United States, or giving aid and comfort to said rebellion, shall 
be forfeited and confiscated to the United States ; and as to all jproperty which shall be seized and appro- 
priated as hereinafter provided, such forfeiture shall take immediate effect upon the commission of the 
a«t of forfeiture, and all right, title, and claim of the person committing such act, together with the right 
or power to dispose of or alienate his property of any and every description, shall instantly cease and de- 
termine, and the same shall at once vest in the United States." 

It is manifest from this section of the bill that the estates of persons engaged 
in this war in opposition to the Government, who are either in aims or aiding 
and assisting it, are forfeited by legislative enactment without the instrumental- 
ity or the aid of judicial process. That is evidently contrary to the provisions 
of the Constitution that I have read. lam fully aware that the honorable 
Chairman of the Judiciary Committee and the distinguished Senator from New 
York, [Mr. Harris,] also a member of that committee, have declared to the 
Senate that this is not a bill of attainder. They both admit that wherever a 
party is convicted of treason you cannot forfeit his estate for a longer period 
than his life ; but they attempt to avoid the application of the clause of the 
Constitution which says no bill of attainder shall be passed, to this section, on 
the ground that a bill of attainder must necessarily be ex post facto in its na- 
ture, and that this section applies only to those who shall commit this offense in 
the future. With great deference to those distinguished gentlemen, I humbly 
submit to the Senate whether the Constitution of the United States can be cir- 
cumvented in that manner. 

In order to give a just, full, and fair interpretation of the Constitution or of 
a statute, you must take into consideration the circumstances surrounding those 
who made it, the evils to be corrected, and the rights and privileges to be se- 
cured. Let us examine this clause of the Constitution in that light, and see 
whether or not it was not the intention of the fraraers of our Constitution to 
prevent our people from being visited by those harsh penalties that accompanied 
treason in England, the laws of which were extended to this country. I will 
read a few extracts from Judge Story on the Constitution that show very clearly, 
and in language more pointed and more forcible than any I could use, the rea- 
son why our fathers inserted those clauses in the Constitution. Commenting 
on the first section of the Constitution that I have just read conpeming the 
punishment of treason. Judge Story says : 

" It is well known that corruption of blood and forfeiture of the estate of the offender followed, as a 
necessary consequence, at the common law, upon every attainder of treason. By corruption of blood all 
inheritable qualities are destroyed ; so that an attained person can neither inherit lands nor other heredit- 
aments from his ancestors, nor retain those he is already in possession of, nor transmit them to any heir. 
And this destruction ofall inheritable <iualities is so complete that it obstructs all descents to his posterity 
whenever they are obliged to derive a title through him to any estate of a remoter ancestor. So that if a 
father commits treason, and is attai'ned, ami sutfers death, an<l then the grandfather dies, his grandson 
cannot inherit any estate from his grandfather; for he nmst claim through his father, who could convey 
to him no tnlieritablo blood. Thus the innocent are made the victims of a guilt in which they did not, 
aad perhaps could not participate, and the sin is visited upon remote generations. In addition to this 



'•v'_<^j-~^ 



most grievous disability, the person attainted forfeits, by ttre common law, all his lands and tenements, 
and riarhts of entry, and rights of profits in lands or tenements which he possesses. And this forfeiture 
relates back to the time of the treason committed, so as to avoid all intermediate sales and incumbrance^; 
and he also forfeits all his goods and chattels from the time of his conviction." — Stoi-y on the Co^istituiion, 
vol. 2, sec. 1298, pp. 178, 179. 

It was to relieve our people forever from the harsh features of the English 
law cited by Judge Story that caused our wise ancestors to put in our Constitu- 
tion the clauses that I have quoted. I will read another extract from the same 
authority. In commenting upon the clause of the Constitution which says, 
"no bill of attainder or ex post facto law shall be passed," Judge Story says: 

"Bills of attainder, as they are technically called, are such special acts of the Legislature «s inflict capi- 
tal punishments upon persons supposed to be guilty of high offences, such as treason and felony, without 
any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punish- 
ment than death, it is called a bill of pains and penalties. But in the sense of the Constitution, it seems 
that bills of attainder include bills of pains and penalties; lor the Supreme Court tiave said, 'a bill of 
attainder may affect the life of an individual, or may confiscate his property, or both.'" 

That was decided in the case of Fletcher vs. Peck, reported in 6 Cranch — 

" In such cases the legislature assumes judicial magistracy, pronouncing upon the guilt of the party 
without any of the common forms and g«iards of trial, and satisfying itself with proofs, when such prooJs 
are within its reach, whether they are conformable to ihe rules of evidence or not. In short, in all such 
cases the legislature exercises the highest power of sovereignty, and what may be properly deemed an 
irresposibI« despotic discretion, being governed solely by what it deems political necessity or expediency, 
and too often und«r the influence of unreasonable tears or unfounded suspicions. Such acts have been 
often resorted to in foreign Governments as a common engine of State; and even in England they have 
been pushed to the most extravagant extent in bad times, teaching as well to the absent and the dead as 
to the living. Sir Edward -Coke has mentioned it to be among the transcendent powers of Parliament, 
tliat an act may be passed to attaint a man after he is dead. And the reigning monarch, who was slain at 
Bosworth, ia said to have been attainted by an act of Parliament a fewnionlhs after his death, notwith- 
standing the absurdity of deeming him at once in possession of the throne and a traitor. The punishment 
has often been inflicted without calling upon the party accused to answer, or without even the formality , 
of proof ; and sometimes, because the law, in its ordinary course of proceedings, would acquit the offender. 
The injustice and iniquity of such acts, in general, constitute an irresistible argument againat the existence 
of the power. In a tree government it would be intolerable ; and in the liands of a reigning faction it 
might be, and probably would be, abused to the ruin and death of the most virtuous citizens. Bills of 
this sort h.ave been most usually passed in England in times of rebellion or of gross subserviency to the 
crown, or of violent political excitement, periods in which all nations are most liable — as well the free as 
the enslaved— to forget their duties and to trample upon the rights and liberties of others." — Story on the 
Ckmstitution, vol. 2, sec 1344, pp. 23S, 240. 

I have read at length these two sections from Judge Story, pointing out ih©> 
reasons why it was that our fathers placed in the Constitution the clauses, tihaii 
I have read. I have stated distinctly to the Senate that, in my judgment, there 
could be no confiscation for treason, except after judicial attainder and finding 
by the courts, and then only for life. This hill forfeits and confiscates the prop- 
erty of these parties for the crime of treason by legislative enactment,, aijd con- 
sequently it is nothing less than a bill of attainder. It is clearly so. The 
great objection to bills of attainder was, not so much that they were ex post 
facto in their nature, but because they deprived the citizen of his property with- 
out judicial process, which is secured to him by the Constitution. If the two 
Senators to whom I have referred are correct, that this bill is not technically a 
bill of attainder, certainly in all its moral and legal eflects ilj.is a bill of attain- 
der ; but I believe, when strictly construed, it is a bill of attainder. The chief 
and most obnoxious feature o-f a bill of attainder is, that you deprive the citizen 
of his life, his liberty, or his property by legislative enactnaerit, without judicial . 
process, without trial by a jury of his peera. It is to that that Judge Story 
points as one reason why that kind of proceeding was so obnoxious to law, to 
reason, to justice, and to right. I would ask the gentlemen who contend that 
this section of the bill is constitutional, what disposition they will make of the 
clause of the Constitution which I have read, which declares that no man shall 
be deprived of his life, liberty, or property without process of law ? This bill 
certainly violates that provision of the Constitution. What do you mean, sir, 
by process of law ? We are not left in the dark a» to what is nie«nt by it. 
That clause of the Constitution is substantially a claiUse, oC Magna Charta. I 
will read what Mr. Story says upon that subject : 



6 

"The other part of the clause is but an enlargement of the languaze of Magna Charta, ^nec super emu 
ibimus, nee super eiim initUmug, nisi per legale judicium parium auornm, vel per legem terra,' 
neither will we paf 8 upon him or condemn him, but by the lawful juiismeiit of his peers, or by the law of 
the land. Lord Coke says that these latter words, pier legem terra, (by the law of the land,) mean by du« 

Erocess of law; that is, without due presentment or indictment, and being brought in to answer thereto 
y due process of the common law. So that this clause in etfect affirms the right of trial according to the 
process and proceedings of the common law.'*' 

I put it to my worthy friend from New York, whom I know to be an able 
lawyer, how he can, by any process of logic, put this bill in any attitude that 
is not obnoxious to that provision of the Constitution? Do you not, by the 
section of the bill that I have read, deprive the citizen of his property without 
process of law ? Do you give him a trial in any court ? None, sir, none ; but 
you take away his property by legislative enactment. Fortunately, we are not 
left entirely without judicial decieion on this point, I am aware that Senators 
make an effort to evade the force of the constitutional objections I am now 
making, and which were so ably urged by the Senator from Pennsylvania, (Mr. 
Cowan,) the Senator from Illinois, (Mr. Browning,) the Senator from Cali- 
fornia, (Mr. McDouGALL,) and the Senator from Virginia, (Mr. Carlile,) and 
others, by asserting that this is not a punishment for treason. That was par- 
ticularly asserted by the chairman of the Committee on the Judiciary. Sir, I 
ask if you can avoid the plain, distinct provisions of the Constitution by that 
kind of circumvention ? What is the language of the bill itself? It is, that 
the estates of persons 

"Found in arms against the United States, or giving aid and .comfort to said rebellion, shall be for- 
feited and confiscated to the United States." 

The very language of your bill is the offence of treason as defined by the 
Constitution ; and yet you say because the party is not convicted of treason, 
you will forfeit his estate, which the constitution says shall not be forfeited 
without process of law ; you will spare the party the trial and sentence of a 
court by a kind of artful dodge, for the purpose of circumventing the plain 
provisions of the Constitution and forfeiting his estate. In my judgment, such 
dodging cannot circumvent and virtually annul the clear provisions of the Con- 
stitution. You cannot treat them as citizens in arms against their Govern- 
ment, and at the same time apply to them the law which governs alien enemies, 
whilst you recognize them as citizens. Yoii cannot rigtitfuUy withhold from 
them the guarantees of the Constitution. 

I have a decision reported in the first volume of Dana's Kentucky Reporte 
that I think is very much in point upon this very question as to whether this is 
a bill of attainder. Certainly each and every Senator must admit that in all 
of its moral and legal consequences it is a bill of attainder, if not technically 
so ; but I believe, as I have said, that it is technically a bill of attainder, 4>e- 
eause you deprive the person of his estate by legislative enactment without ju- 
dicial process. In 1824, the Legislature of Kentucky passed a law requiring 
the nonresident' owners of lands in that State to make certain iif provements 
upon them, and in the event that they did not make the improvements pre- 
scribed in the statute, their lands were forfeited and subject to entry under our 
land laws. Many persons did not make the improvements; others entered 
upon the lands; and the question came up directly under that statute as to 
whether it was constitutional or not. The case was elaborately argued, and 
decided by two of the judges of our Supreme Court. The opinions were con- 
current. Such was the magnitude and importance of the case that two judges, 
which is not common with us, delivered opinions. One of them was Judge 
Underwood, long an honored member of this body, and the other was Judge 
Nicholas, one of the most eminent jurists in that or any other State. They 
decided that the law was in contravention of the provisions of the Constitution ; 
that it was not only in its moral and legal efiects, but in reality, a bill of at- 
tainder. Judge Underwood makes a very elaborate and able opinion. He 



alludes to the clauses of the Constitution which I have read rather incidentally ; 
but Judge Nicholas quotes the Constitution and decides it most directly. I 
will read one or two paragraphs from his opinion. It is the case of Gaines, et 
al. vs. Buford, reported in 1 Dana's Kentucky Reports. He says : 

"The powers of government are divided into three distinct departments, and confided to separate 
bodies of magistracy ; those which are legislative to one, those which are executive to another, and those 
which are judiciary to a third, with a declaration that no person or persons being of one of those depart- 
ments shall exercise any power projierly belonging to either of the others. It is of the last importance 
to the purity of our institutions that this division of powers should be preserved, and this barrier against 
ttie encroachment of one department upon another should be properly kept up." 

I think Senators would do well to bear in mind this lucid exposition of our sys- 
tem of Government and its division into various departments, and that our lib- 
erties alone consist in allowing no one department to encroach upon the other, 
but to keep each in its own sphere. Whenever you consolidate them your lib- 
erties are overthrown. Further on. Judge Nicholas says : 

"The prohibition of the Federal Constitution against the passage of bills of attainder Is also deemed 
to have an important bearing on this question. 

^^ Bills of attainder are said by Woodeson, in his lectures, to be acts of the supreme power, pronoun- 
cing capital sentences where the legislature assume judicial magistracy ; and HUn of pains and penal- 
ties these which inflict milder punishments. But jt is believed that HU of attainder is a generic term, 
comprehending both descriptions of acts. Sucli, at least, is believed to be its true signiflcation, as used 
in our constitutions. Thus, it is said by the Supreme Court, in Fletcher vs. Peck, 6 Cranch, 138, ' a bill 
of attainder may affect the life of an individual, or may confiscate his property, or both.' So, also,'it is 
said by Judge Tucker, in his edition of Blackstone, volume one, page 292 : 'Bills of attainder are legis- 
lative acts, passed for the special purpose of attainting particular individuals of treason, or felony, or in- 
flicting pains and penalties beyond or contrary to the common law.' That the term should be received 
in the large sense thus given to it, is consonant with the true republican character of our institutions. 
A condemnatory act of the legislature inflicting upon an individual, or class of individuals, pains and 
penalties, is us much within the reason of the prohibition as if it inflicted capital punishment. They are 
both equally hostile to the principles of civil liberty and the spirit of our written constitutions. They 
are equally engines of tyranny and oppression, and equally unsuitted to the government of a free people. 

" Understanding, then, the term bill of attainder as embracing bills of pains and penalties, the act in 
question would seem to fall under this inhibition.'' 

What was the act of the Kentucky Legislature? It was that non-residents 
owning real estate in the State should make certain improvements, and if they 
omitted to do it the property was forfeited. Judge Nicholas tells us that that 
■was in violation of the clause of the Constitution that I have just read. What 
do you propose here? You say if a certain class of persons do certain things 
■which you set forth in your bill, to wit, commit treason, then they shall be sub- 
ject to forfeiture of their estates. In the one case it is a sin of omission, and 
in the other a sin of commission. That is the only ditierence between the' two 
bills, and both are equally obnoxious to the constitutional objections that I 
have stated. He goes on further : 

"That is ahijlily penal law, inflicting a most grievous penalty for the omission of the thing commanded 
to be done, is beyond dispute. But it is not the weight of the penalty, nor the character of the offence, 
that makes it a bill of attainder. But it is the conflscation of the property of individuals which attempts 
to make, before any condemnation, for the offence designated, either in personam or in rem. When the 
State rightfully requires the property of a citizen by forfeiture, it is, as the punishment annexed, by law 
to some illegal act or negligence of its owner. That the legislature may make the act or omission illegal, 
and prescribe forfeiture as the penalty, is admitted. But it is denied that it can of itself inflict the punish- 
ment. So far as the act in question undertakes to divest the title out of Gaines, and vest it in the State, 
it is a legislative infliction of the penalty ; it is an assumption, to that extent, of judicial magistracy, with- 
out affording the accused the benefit of those forms and guards of trial which are his constitutional right, 
whenever he is sought to be punished, either in his person or by forfeiture of his property, for alleged 
violations of the penal enactments of the State.'' 

That, sir, is what condemns this section as unconstitutional, because if this 
bill should become a law, you deprive, as far as you can do it by legislative enact- 
ment, the citizen of his property without allowing him the benefit of trial by 
process of law. The judge continues : 

" The right to forfeit is an incident merely to the power to punish guilt. Without the guilt, the forfeit- 
ure cannot be incurred. The guilt cannot be ascertained by the legislature, nor otherwise than by a direct 
oriminal procedure of some sort, and a judicial determination thereon." 

Do you give these parties any judicial determination? No, sir; you by 
your legislative decree at one stroke of the pen deprive perhaps six millions of 
people of all their estates, real and personal, without any judicial process what- 
ever, without trial by any court or any judicial tribuual. He continues : . 



8 

" Bills of attainder have generally designated their victims by name ; but they may doit also by classes, 
or by general description Suing a multitude of persons. Either mode is equally liable to moral and con- 
stitutional censure." 

Here you do it by classes. You designate a class of persons any of whom 
or ail of whom who commit the acts prescribed by your law, which is really a 
technical definition of treason, you say their entire estate, real and personal, 
shall be forfeited. 

"They have generally been applied to punish offences already committed ; but fhey have been and may 
be applied to the punishment of those thereafter to be committed, or for rriininal omissions Iherealter in- 
curring. A bill of attainder is not necess.ijily an ex post facto law. A British act of Parliament might 
declare that, if certain individuals, or a class of individuals, failed to do a given act by a named day, they 
should be doemed to be and treated as convicted felons or traitors. Such an act comes precisely within 
flie definition of a bill of attainder, and the English courts would enforce it without indictment or trial by 
jtiry ; tlie prisoner, when brought to the bar, being merely asked what he had to allege, why execution 
should not be awarded against him." 

It is clear, then, Senators, not only from the Constitution itself and the rea- 
sons that I have suggested, but from this most elaborate decision of one of the 
ablest judges that has ever graced the bench in any State in the American 
Union, that this is a bill of attainder, and it certainly violates the three provi- 
fionsof the Constitution to which I have referred. 

Apart from the unconstitutionality of the bill, it would be unwise and ib6i- 
pedient; it would be harsh ; it would be in conflict with all the rules of civili- 
zed and modern warfare. Chancellor Kent says : 

" The general usage of war is not to touch private property upon land, without making compcnSHtloa, 
onless in sx^ecial oases, dictated by the necessary operations of war; or when captured in places carried 
by storm, and which have I'epclled all the overtures of capitulation.''— 1 KenVa Commentaries, p. W. 

And according to Vatel : 

" For the same reasons which render the observance of those maxims a matter of obligation between 
State and State, it becomes equally and even more necessary in the unhappy circumstance of two innocoit 
parties lacerating their common country." — FatM, 425, chap. 28' 

By the passage of this bill you not only overthrow the Constitution of your 
country, but you do what has not been done in any civilized nation in Chris- 
tendom for the last seven centuries. The last act of this kind, so far as I am 
advised, that was ever resorted to by a Christian nation was in England, when 
William of Normandy overthrew Harold at Hastings. 

Mr. Trumbull. I should like to ask the Senator from Kentucky this ques- 
tioo: if he does not know that every one of the colonies — Maryland, Virginia, 
Pennsylvania, and all the rest — forfeited the property of the Tories in the Revo- 
lutionary war. 

Mr. Powell. I will answer the Senator ^iih a great deal of pleasure. I 
am not aware that every one of the colonies did it. I know that many of 
tbem did ; arid I know that Judge Story and other writers in this country say 
that that was one of the reasons why our fathers put it in the Constitution, 
that we should not do it. 

Mr. Trumbull. I should like to ask the Senator another question : •whe- 
ther that was not since seven centuries ago ? 

Mr. Powell. Well, that may be. We were rather in ^tabryo then ; we 
were struggling for existence ; we ^ere not regarded by Eiiropean Powers as a 
separate, and independent nation, but as a people in revolt against a parent 
Government, a people struggling for independence and nationality. I made 
toy statement on the authority of Mr. Wheaton. I am very glad, however, 
the Senator suggested th^t, for I Wish the Sfehate to look iiito the ftufhbrities. 
The writers on our Constitution cite those very things as one of the reasons 
why these clauses Wei'e inserted by our fathers in the Constitution. Mr. 
Wheaton, in making the statement, I suppose, did not regard the colonies as a 
separate nationality, but rherely as a people struggling for liberty. Speaking 
of the subject of property obtained by conquest, Mr. Wheaton says : 



9 

" Such was the Roman law of war, often asserted with unrelenting severity ; and such was the fate of 
the Roman provinces subdued by the northern barbarians, on the decline and fall of the western empire. 
A large portion, from one third to two thirds, of the lands l)eIonging to the vanquished provincials, was 
confiscated and partitioned among their conquerors. The last example in Europe of such a conquest was 
that of England, by William of Normandy. Since that period, among the civilization of Christendom, 
conquest, even when confirmed by a treaty of peace, has been feUowed by no general or partial transmu- 
tation of landed property. The property belonging to the Government of the vanquished nation passes 
to the victorious State, which also takes the place of the former sovereign, in respect to the eminent do- 
main. In other respects, private rights are unaffected by conquest." — Wkeatoii's Elements of Interna- 
tional law, p. 420. 

That is what Mr. Wheaton says on the subject, and he is usually exceedingly 
accurate; and you propose to do what this most eminent of international law 
writers — certainly the most eminent of this country — says has not been done 
for seven centuries. Let me tell you, Senators, if you pass this bill, you can- 
not execute it except to a very limited extent, and so far as you did execute it, it 
would result in a swindle to the ignorant purchasers confiding in Congress, for 
the courts would decide that you could only forfeit the property during the life of 
the offender. The result would be that the ignorant purchasers buying this prop- 
erty, confiding in the title obtained in consequence of this law, would all he 
cheated and swindled ; for whenever the courts were open, whenever a fair 
hearing in any impartial and enlightened court in Christendom could be had, I 
have no doubt such titles would be held to be invalid. 

As I have said, if you attempt to take the property of those engaged in this 
war against the Government, you can do it only for life, and then only by pro- 
cess of law. For these reasons I have stated, I believe, if you pass this bill, 
that it will be clearly unconstitutional, and that no good, but great harm will 
result from it. You would confer defective titles, and involve the purchasers in 
lawsuits; and so far from having the effect you suppose it would have, to 
weaken those in arms against the Government, in my judgment, you would 
nerve their arms; indeed you would put arms in the hands of tens of thousands 
that are now taking no part in this strife. You would fire them with a despe- 
rate zeal. They would have no motive to lay down their arms, when they 
knew that all their property would be forfeited, and they themselves sent "as 
beggars through the earth. 

Another objection to the bill is, that it punishes alike the innocent and the 
^ilty. You strip the women, you strip the infant children, you strip decrepit 
age of that support to which they are entitled as the result of their savings 
from the labor for years of their families. It is harsh; it is cruel; it is unbe- 
coming the age in which we live; and in my judgment unbecoming the Anie- 
rican people. In a time like this, we should attempt by measures just and 
constituuonal, to show those in arms against the Government, that we are not 
actuated by hatred to them or their domestic institutions — that our only object 
is to reconstruct the constitutional Union. Intolerance and vindictiveness never 
saved a Government, and will not save this. I now come to the second section 
of this bill; and in order that I may present it fairly before the Senate, I will 
t/^d it : 

Seo. 2. And he it further enacted. That every person having claim to the service or labor of any other 
person in any State under the laws thereof, who during the present rebellion shall take up arms against 
the United States, or in any manner give aid and comfttrt \o said rebellion, shall thereby forthwith forfeit 
all claim to such service or labor, and the persons from whom it is claimed to be due, commonly called 
uiaves, shall, ijjso facto, on the commission of the act of forfeiture by the party having claim to the service 
or labor as aforesaid, be discharged therefrom, and become forever thereafter free persons, any law of any 
State or of the United States to the contrary notwitlislanding. And whenever any person claiming to be 
entitled to the service or labor of any other person shall seek to enforce such claim, he shall, in the first 
Instance and before proceeding with' the trial of his claim, satisfactorily prove that he is and has been, 
during the existing rebellion, loyal to the Government of the United States ; and no person engaged in 
the military or naval service of the United States, shall, under any pretense whatever, assume to decide on 
the validity of the claim of any person to the service or labor of any other person, or to surrender up any 
6uch person to the claimant. 

There is certainly no power delegated to Congress to pass the section of the 
bill just read. All political organizations in this country have held that Con- 
gress had no power to interfere with the local institutions of the States, Con- 



J 



10 

gress, on tbe 23d of Marcb, 1790, passed a resolution declaring that they " had 
no authority to interfere for the emancipation of slaves within any of the States, 
it remaining for the several States alone to provide any regulation therein which 
humanity and true policy may require." On the 11th of February, 1861, 
Congress, by an overwhelming majority, passed a resolution " that neither Con- 
gress nor any of the non-slaveholding States ha(i any right to interfere with 
slavery in any of the slaveholding States of the Union." 

This is certainly in contravention of those resolutions, for you are interfering 
■with the institution of slavery in the States. I am old-tashioned enough in my 
politics to believe that there is something of State rights left. Indeed, I have 
ever been a State-rights man, and now am a State-rights Democrat, and believe 
that if this country is rescued from the perils by which it is surrounded, it will 
ultimately be done by carrying out the constitutional principles of that glorious 
old party, which has successfully administered this Government for over fifty 
years. All parties, every political organization in this country, have admitted 
that the control of this domestic institution of slavery is a matter that is re- 
served to the States. There is not and has not been, any class of politicians in 
the country that ever held otherwise, except a few who claim to be higher-law 
men. There is no reasoning with one of these higher law men. I have no 
more respect for a politician who claims that he is governed by a law higher 
and above the Constitution which he swears to support than I have for a 
man who claims to be a Christian while he repudiates the Bible, and says 
there is a code beyond and above it by which his Christian life is governed. 
I look upon them as crazy, mischievous madmen, one in the political field and 
the other in religious afiairs. They are the only class of people that ever did 
claim this power. The Democratic party never claimed it; the Whig party 
never claimed it; the Republican party never claimed it; the Chicago platform 
expressly repudiates it; and it is only this class of individuals to whom I have 
alluded that ever did claim it, so far as I am advised. 

This section of the bill is an insidious attempt to do indirectly what its advo- 
cates will not attempt to do directly. It is an attempt to destroy the institution 
of slavery in the southern States. You will not attempt to do it directly ; but 
in my judgment this is a most insidious attempt to do it indirectly. It violates 
the clauses of the Constitution to which I have referred. It is a bill of attainder 
accompanied with forfeiture without judicial process. By it you take private 
property without process of law. You take it without compensation, not for 
the public use, but to turn it adrift, and in many cases to become a charge upon 
your already exhausted treasury ; for I find that you have got commissions 
down South now, engaged in some cotton-planting speculations, which I venture 
to say, will cost this Government thousands, upon thousan<ls of dollars. There 
is one clause in this section to which I wish to call special attention : 

"And no person engaged in the military or naval service of the United States shall, under any pretense 
whatever, as>»iime to decide on the validity of the claim of any person to the service or labor of any other 
person, or to surrender up any such person to the claimant." 

I do not know that the first part of that clause, that they shall not decide 
upon the claim of any person to his slave, is very objectionable, that might 
well be left to the courts ; but it is declared that they shall not' surrender them 
up — what will be the eft'ect of that ? It will make these camps a place of refuge 
for the slave population, and that will necessarily incite insurbordination. They 
will flock there by hundreds and by thousands. We know they are doing so 
now. One of the reasons why our fathers declared they took up arms against 
the British king was, that " he had incited insurrection among us." This clause 
has that tendency, to cause insurbordination, insurrection. 

There is another reason why I think you should do nothing like this. All 
of the slave States have laws and regulations for the emancipation of slaves. 



^l^^iFW 



- 11 

Tb„e United States must be governed by those laws, if it attempts to interfere with 
them. I need but state to so learned a lawyer, as I know the Senator from 
NewjjYork to be, the proposition, and he will at once see that when you go to 
interfere with the property of the people of any of the States, secured by their 
constitution and their laws, you must do it in obedienae to their State laws. 
They must govern, and do govern, in the United States courts in all the States 
of the Union, concerning every description of property that can be legitimately 
held in the States. This bill, then, is a violation of the laws and constitutions 
of the States. It sweeps them all by the board. I know it is not common here 
to accord to the States many rights; the tendency is to a consolidated despot- 
ism; but all admit that they have some rights; all admit that they have con- 
trol over this institution of African slavery within their borders; and yet, not- 
withstanding that, you now propose to pass a bill putting that institution vir- 
tually out of existence, and emancipating their slaves, not only in violation of 
their local laws regulating the subject, but in derogation of every right that 
those people may have in that property, without even giving them the oppor- 
tunity of litigating their rights or of making their defence in a court of justice. 
Why, sir, many of those men may be innocent of this charge of treason. You 
do not allow them what you now accord to the lowest and most degraded petty 
larceny thief, an opportunity to vindicate his innocence; but you charge them, 
you condemn them, you forfeit their estates, you turn them out to wander as 
vagabonds through the earth, all this you do without hearing them before any 
judicial tribunal whatever ; and you do this by the action of the American 
Senate, in this temple where we would suppose constitutional liberty and law 
delighted to dwell. Pause, Senators, before you go so far. We are now upon 
just such times as those in which Judge Story said those rash penalties of con- 
fiscation were passed in England, during times of civil war, when the reason 
is tossed to and fro as a reed is driven by the fierce hurricane in a storm. It 
is no time for such things. I had supposed that it would be kept out of this 
Senate, but I regret to say that the most Framed judges and lawyers here appear 
absolutely to be ready to overthrow the Constitution, I will do them the jus- 
tice, however, to remark, that I dare say they believe what they are doing is 
constitutional. 

Sir, what will be the effect if this section should become a law ? It will 
result virtually in the emancipation of the slaves in all the States. You turn 
loose the slaves of all those parties who are engaged in this rebellion, and, in 
the cotton States, nearly all the people are in it. What you will leave them 
will not be worth having, particularly when they are in the midst of such a free 
negro population ; and that is the object. The Senator from Kansas, (Mr. 
PoMEROY,) who has the negrophobia — if he will allow the word ; I do not use 
it offensively — as badly as any man I ever saw, smiles when I say this. It is 
what he wishes, what he wants. The effect will be as I have stated, and hence 
I have called it an insidious attempt to do indirectly what fhey would not at- 
tempt to do directly. I would much prefer that gentlemen should march up to 
the work at once, unfold their flag, proclaim their purpose, and propose a law 
to free all the slaves. That, in my judgment, would be more direct, more manly, 
more to be approved by open, candid, sincere men. 

It is true there is a clause in the bill providing for colonization. Why, sir, 
that clause amounts to nothing. You will colonize no negroes under it, or, if 
any, very few. In the first place, it is to be voluntary colonization. No man 
ever spoke more truly than my colleague did the other day. When speaking 
of the negro, he said he was not a migratory animal — I do not know that I 
quote his words — he would stay where you would leave him ; he would not be 
willing to go abroad to seek other homes. All the other races of the earth 
have gone to every part of the globe, but who ever knew of a woolly-headed 



12- 

nejjro to go from his native land, except when under the influence of others? 
Why, sir, there never would have been one of them in this country, had it Hot 
been that the Anglo-Saxon brought him here by force. They were brought 
here by our English forefathers after Queen Elizabeth, by orders of council, 
authorized the slave trade, and by our own j>eople, particularly our New Eng- 
land brethren, for they did the most of this slave-trading business, and held on 
to it with very great tenacity so long as they found it profitable. They kept 
in the Constitution a clause allowing them to indulge in this trade for twenty 
years after it was formed. Their lauds were too poor to allow slaves to work 
them profitably, and they sold them sou'.h ; but they found the trade still profit- 
able, and they held on to it for twenty years after the formation of the Consti- 
tution. The negro would never have been here but for the instrumentality of 
our own people and our Ehglish ancestors ; he would have remained a savagie 
and cannibal in his native Africa. Well, sir, what will you do with them ? Will 
you turn these four millions of slaves loose? That will be the effect of this bill. 
As to colonizing them, unless you do it by compulsion, I tell you it will not be 
done. It never has been done, and it never will be, except to a very litnited 
extent. Why, sir, what has this colony at Liberia done ? After many years of 
the most assiduous labor, they have got but few, and many of these went there 
in order to be free, for they were emancipated upon the condition that they 
should go there ; and many who went under that condition, to my knowledge, 
have returned. The negro, while he remains in this country, should be held as 
a slave. It is best for both the black and the white man that it should be so. 
The free negroes are the most worthless, thriftless, lazy, vagabond population 
on earth. 

But, sir, this bill provides that you shall buy homes for them, and colonize 
them. How much money would it take? The Senator from Virginia, (Mr. 
WiLLEY,) who seems to have had a good deal to do with this Colonization So- 
ciety, said, the other day, that it would lake |!500 a head. If so, it would cost 
you two thousand millions of money to colonize these slaves. Are you in a 
condition to bear such an expenditure as that? I suppose this Government 
owes to-day a thousand millions of dollars. Your expenses in carrying on this 
war are said to be three or four millions a day ? If the slaves were willing to 
go, could you bear the expense ? Certainly you could not, and therefore I say 
this colonization clause in the bill amounts to nothing. I would not give a fig 
for it, or all the negroes that you will ever colonize under it. It is a mere tub 
that you have thrown out to let those people who dislike free negroes to come 
among them, sport with for a while. 

Senators, if your object is not the emancipation of all the slaves, if you go on 
with this kind of legislation, you will soon make all the people in the slave 
States think so. I have been very much opposed to the legislation that has 
been under consideration here. I knew it would irritate ; I knew it would do no 
good ; I knew it would do much harm ; I knew it would make many, now friendly, 
enemies to this Union. What has been done in the last two mouths on this 
subject of slavery ? You have passed the resolution recommended by the Pres- 
ident, proposing to give aid to the border States to effect emancipation. You 
have abolished slavery in the District of Columbia, and in that bill you in- 
serted a clause allowing a negro to testify, and by another clause the oath of 
the master is made unequal to that of his negro. Then you have passed an 
article of war preventing any officer of the army surrendering up a fugitive 
slave under penalty of dismission from the service. The Senator from Dela- 
ware (Mr. Saulsbury) proposed to amend that bill by inserting a provision that 
if any officer should engage in enticing or decoying a slave from the service of 
a loyal master, he should be subject to a like penalty. You refused to agree 
to il. If you wanted equal and exact justice, why did you not insert that pro- 



u 

vision to punish with dismissal from the service any oflScer who should entice a 
slave from a loyal owner — in other words, who should engage in negro stealing. 
You chose not to do it. What is the result ? I regret to allude to these things. 
It is a fact published in the newspapers, and I was told by gentlemen from 
Baltimore not long since, that from General Banks' column there passed through 
the city of Baltimore, under military escort, some ninety slaves, and they were 
carried and turned loose in Philadelphia. Whether they were the slaves of 
loyal men or not, I do not know ; but there you find the military arm of the 
Government is being used to send runaway slaves to the free States. I hear no 
complaint from Republicans about that; but if one slave were delivered up to 
his owner, you would hear great complaint about it. 

I saw it stated recently ia the newspapers, and one of my colleagus in the 
House told me night before last he had letters from his district informing him, 
that from the northern part of Kentucky there had been taken forty-five negroes 
from loyal masters. They were taken in a Government steamboat which passed 
Catlettsburg, in Kentucky, to Ohio, and turned loose, and they were taken by or- 
der of those in command of the post somewhere on the Big Sandy. We hear no 
complaint about this from the other side of the Chamber. If the amendment 
proposed by the Senator from Delaware had been inserted in this article of 
war, those gentlemen would have been dismissed from the service. In addition 
to this, you have repealed all the disabilities on these negroes from carrying th* 
mails. Senators and Representatives have openly advocated the arming of the 
slaves. Propositions have been introduced into Congress to reduce sovereign 
States to Territories. A great deal of what you have done, T have heretofore 
said was unconstitutional. It will be very hard to make the people who are in- 
terested in thip kind of property believe that your object is not to destroy it. 
I speak plainly, but I trust without offence. With all these acLs before them, 
notwithstanding your professions, your delarations in the M'ay of congressional 
resolutions, party platforms, and the President's messages, that you have no 
right, desire, or intention to inteifere with slavery in the States, you will find it 
very hard to make them believe that such is not your object. The people of 
the slave States would be stupid, indeed, if they doubted, after the many evi- 
dences you have given them in the last few months, that your intention and 
object was not to destroy the institution of slavery. I know there are Repub- 
licans who do not favor the measures to which I have alluded, but so far their 
numbers have been too few to prevent the legislation to which I have re- 
ferred. Extreme anti-slavery men desire the war as an instrument to accom- 
plish the destruction of African slavery. They do not desire the Union to be 
reconstructed unless slavery shall first be abolished. If these men thought that 
slavery would not be abolished by the war, and that the Union would be re- 
constructed as it was before the commencement of this unfortunate civil war, 
they would oppose the war, and would not furnish either men or money to 
cSrry it on; prominent anti-slavery men, both in and out of Congress, have so 
declstred? If our form of Government, our constitutional rights, our civil lib- 
erties, are preserved, the radical and extreme men, who now hold sway, who 
btefer the destruction of the domestic institutions of the southern States to the 
preservation of the constitutional Union of our fathers, must be repudiated by 
the people, and conservative men, who revere the Constitution and have a just 
appreciation of civil and constitutional liberty must fill their places. If that is 
hot done, I have but little hope of preserving our system of Government. If 
the people will rally boldly and fearlessly to the standards of those who are de- 
termined to protect, preserve, and enforce the Constitution, we may be enabled, 
to save our system of Government, and transmit our glorious Constitution to 
those who are to come after us. 

I will now say a few words upon the fourth section of this bill, and in order 



14. 

that I may not misrepresent it, I will read it. I hope the Senate will listen to 
this section. It gives the Executive most extraordinary power : 

Sec. 4. And te it further enacted, That it shall be the duty of the President of the United States, as 
often as in his opinion the military necessities of the Army, or the safety, interest, and welfare of the 
United States in re^rard to the suppression of the rebellion shall require, to order the seizure and appro- 
priation, by such officers, military or civil, as he may designate for the purpose, of any and all property 
confiscated and forfeited under and by virtue of this act, situated and being in any district of the United 
States beyond the reach of civil process in the ordinary course of judicial proceedings by reason of such 
rebellion, and the sale or other disposition of said property, or so much of It as he shall deem advisable.' 

Was there ever, in the history of this or any other well regulated free Gov- 
ernment, a proposition to clothe the Executive with such vast and extraordi- 
nary powers? The power you propose to give the President is not only unwise 
and inexpedient, hut it is subversive of the Constitution. The powers of Con- 
gress and of the Executive are limited by the Constitution. The Constitution 
confers on the President no judicial power. This bill clothes the Executive 
with judicial and ministerial functions. It arms him, through his deputy, with 
power to seize and sell the property of six millions of people. That is the lan- 
guage of your hill. I say six millions of people, for I suppose there are that 
many now engaged against the Government. Whether they will continue so 
or not, I do not know. I do not believe the passage of this bill would cause 
them to lay down their arms, but would urge them to more resolute and stern 
resistance. The President, under this bill, through any officer, civil or milita- 
ry — yes, sir, he can clothe the most petty judge of the District of Columbia, 
or the most insignificant popinjay of a lieutenant of the Army, with power to 
go into these States, and seize and sell any or all of the property that is con- 
fiscated by the terms of this bill. It confiscates the property of all who are 
engaged in this rebellion with arms in their hands, or who are giving aid and 
comfort to it, that property being situated where the process of law cannot 
reach. That is the power you give to the President of the United States. This 
contemptible justice, or this lieutenant, if you please, is armed with the power 
to go and seize any and all of the property at the President's discretion, and to 
sell it. He is to be. the judge. The Senate of the United States is about to 
clothe the President with such a f)ower as that. Why, sir, you not only clothe 
the President and his agents with judicial, but with ministerial functions. He 
is the judge; he is the marshal. You allow him to send this little lieutenant or 
this justice of the peace, to judge whether or not this property belongs to per- 
sons who have been in arms or giving aid and comfort to the rebellion, and 
after, in his office as judge, he decides the grave question as to whether the 
parties who own the property have been guilty of treason or not. Then you 
clothe him with the power of a marshal to put it up and sell it under the auc- 
tioneer's hammer, and to put the money in the Tieasury; and what is most re- 
markable, from these agencies of the President you require no oath of office, 
no bond for the faithful performance of the duties imposed upon them by the 
President; your judges are required to take an oath of office, your marshals are 
required not only to take an oath of office, but to give bonds with sufficient 
security, that they will faithfully perform the duties of their offices. 

Sir, I venture to say that since the organization of civil Governments there 
never was, in any country that had any respect for liberty or for law, an eflfbrt 
to clothe a magistrate with such extraordinary powers; and yet you clothe this 
magistrate with that power without limitation, and without restriction. The 
only limitation is the will of the President. I have thought that the Presi- 
dent's functions were executive alone. If the Constitution would allow it, 
(which it certainly does not, for the provisions that I have read are plainly vio- 
lated by this section,) I would clothe no man with such power. I would not 
care how wise or how virtuous he might be. If it were possible to endow one 
man with all the wisdom of Solomon, the justice of Aristides, and the stainless 



15 

purity and elevated patriotism of Washington, I would not clothe him with such 
power, and no people who love and wish to preserve their liberty ever will. As 
you break down the departments of your Government and allow the magis- 
trates appointed under any one of the different departments to exercise func- 
tions belonging to the other, you make a breach in the constitutional ramparts 
which our fathers have thrown around our liberties. It should never be done. 
No free, liberty-loving people, who respect and wish to retain their liberties, 
will ever clothe a magistrate with such power. I know that extraordinary 
power in the hands of a wise, virtuous, and just man, might be used tempora- 
rily to promote the best interest of the State. I know Rome was safe when she 
called the wise, the virtuous, and the patriotic Cincinnatus from the plow, and 
clothed him with dictatorial power; but I know that she had cause, grevious 
cause, to mourn the dictatorships of Sylla and Caius Marius. 

Senators, never, never clothe your magistrates with these extraordinary pow- 
ers. Let them exercise only those functions that are given them by the Con- 
stitution of our country. Keep well and plainly marked all the distinctions 
that the Constitution makes in the co-ordinate departments of the Government. 
As you depart from them, you approach a despotism ; for the very essence and 
meaning of despotism is the concentration of all' power in one man. Let the 
legislative, executive, and judicial departments exercise the powers and func- 
tions conferred upon them by the Constitution, and no more. Do not suffer one 
department to encroach upon another. More particularly should we be careful 
in times like these, when every effort is being made by some persons to over- 
throw the Constitution. Let us stand by it as the ark of our safety. Sir, you 
may talk about the Union as you please. I love the Union ; as our fathers 
formed it, it is worthy of my love, my devotion ; but I love the Constitution 
more. If you preserve the Union, you must protect the Constituti,on. The 
Union without the Constitution would not be worth preserving. What care I 
for a territorial Union, even if it were to contain forty times the area of square 
miles that ours does, if in it we have despotism instead of constitutional liberty ? 
For me, sir, I would rather have six feet of the meanest earth with the liberty 
that the Constitution of my fathers conferred upon me, than to live in an em- 
pire on a continent seagirt, with the Constitution overthrown, and my liberties 
and the liberties of those who are to come after me stricken down. I love the 
constitutional Union because of the liberty, the Constitution, the bond of 
that Union, throws around me, and throws around the people. Its territorial 
extent, its grandeur, its power is subject of admiration, but not of love. My 
love is for the constitutional liberty that our fathers gave us when they gave 
us the Constitution : all else but" challenges my admiration. It may gratify my 
vanity ; but the constitutional liberty that our fathers gave us challenges my 
love and my ardent devotion. Allow me to read one single paragraph from Mr. 
W'ebster on this subject in the speech he made on Jackson's protest: 

" The first object of a free people is the preservation of their liberty ; and liberty is only to be maintain- 
ed by conititutional restraints and just divisions of political power. Nothing is more deceptive or more 
dangerous than the pretense of a desire to simplify Government. The simplest Governments are despot- 
isms ; the next simplest limited monarchies ; but all republics, all Governments of law, must impose nu- 
merous restraints aud limitations of authority. They must be subject to rule and regulation. This is the 
very essence of free political institutions. The spirit of liberty is, indeed, a bold aud fearless spirit; 
but it is also a sharp-sighted spirit. It is a cautious, sagacious, far-seeing intelligence. It is jealous of 
encroachment, jealous of power, jealous of man. It demands ciiecks; it seelcs for guards; it insists on 
securities; it entrenches itself behind defenses ; and fortifies with all possible care against the assaults 
of ambition and passion. It does not trust the amiable weaknesses of human nature, and, therefore, 
V)ill not permit power to overstep its prescribed limits, though benevolence, good intent, and patriotic 
intent come along with it. It seeks for duration and permanence. It looks back and before ; and, 
building on the experience of ages which are past, it labors diligently for the benefit of ages that are 
to come. This is the nature of cmistitutional liberty; this is our libekty. A separation of depart- 
ments, an<l the preservation of the lines of division between them, is the fundamental idea in the crea- 
tion of all our constitutions; and doubtless the continuance of regulated liberty depends on the main- 
tenance of these boundaries." 

Thus spoke the great Webster. Senators, I beg you to ponder and digest 



J 



16 

the philosophy And the wisdom contained in that short but eloquent and point- 
ed extract. You wish to consolidate ; you wish to clothe the President with 
the power through the most insignificant instruments, such as the lowest order of 
your judiciary, and the very lowest order of your military, to go forth armed with 
judicial and ministerial power to sell an amount of property that never before 
was put under the auctioneer's hammer — an amount greater than that which 
the Praetorian bands put under the hammer when they struck off the Roman 
empire to the highest bidder ; and yet perhaps you will pass it; but in the 
name of the Constitution of my country, in the name of the liberties of the 
people, I make my protest against it. I invite the attention of Senators to this 
section of the bill ; and I venture to say there never was heretofore, in this or 
any other country, where the rights of property and liberty were appreciated, a 
proposition to confer such extraordinary power upon the executive. 

The sixth section of the bill is an attempt to assimilate the punishment of 
treason to the proceedings for the punishment of smuggling. The forfeiture 
specified in the first section of the bill is a forfeiture for treason, and for treason 
there can be no forfeiture of estate except for life, and that must follow a 
judicial attainder. The party must be found guilty in court by a jury of his 
peers, before there can be a forfeiture, even for life, of his estate. I believe that 
if the doctrine of condemning property for smuggling in the way it is done had 
been met by a fearless spirit at the time, the current of decisions would have 
been different ; but we know the reason assigned for it. We have the consti- 
tutional right to pass laws to lay and collect taxes, duties, and imposts, and 
of course to prescribe the terras and conditions upon which goods may be im- 
ported; and in order to prevent infractions of the law, property which is attempted 
to be smuggled, is, by the law, forfeited. It is a forfeiture of the thing that is 
being used in violation of the law. That is the principle upon which it rests. 
The forfeiture of goods for breach of the revenue laws has, however, slight, if 
any, analogy to the confiscation of property as a punishment for the crime of 
the owner. 

While you keep in view Uie provisions of the Constitution which I have read, 
I do not believe there is any power known to the logician or any art of the 
rhetorician that can give to this bill the semblance of constitutionality. 



THE WAR POWER. 

There is one other subject that I beg leave to refer to somewhat in detail. 
The right to confiscate property has been claimed under the war power. Peti- 
tions have been presented here almost every day of the session asking that the 
property of the rebels be confiscated and their slaves set free under the war 
power. The Senator from Massachusetts, (M'-. Sumner,) I think, has presented 
a wagon load of them this session. I am aware that it is cKiimed that under 
the war power the President and his generals have the right to emancipate 
slaves and confiscate other property, aijd that is derived from the power whic^ 
it is said the President has as Commander-in Chief of the Army in time of war 
to declare martial law. Now, I deny that the President of the United States, 
that any general commanding our forces, ay, that the Government by virtue of 
any or all of its departments can declare martial law. There is no such power 
given in the Constitution of our country, and whoever has attempted, or shall 
hereafter attempt, to exercise it is a usurper — he oveithrows the Constitution of 
his Government, 'that is the position I take ; and if you look into it closely I 
do not think you can doubt its truth. Now, what is this martial law ? I will 
read a definition, as good a one, peihaps, as any you will find, in Jacobs' Law 
Dictionary. Jacobs, in his Law Dictionary defines martial law to be — 



if: 

" The law of war that depends upon the just but arbitrary power and pleasure of the King or his lieu- 
tenant; he useth absolute power so that his word is law. A distinction should be made between martial 
law as t'orinerly executed, entirely at the discretion of the crown and unbounded in its authority as to 
persons or crimes, and that at present established, which is limited as to both.'' 

The Duke of Wellington defined martial law to be — 

"The will of the commander-in-chief." 

Mr. Whartoa, in his Law Dictionary, defines it to be — 

" That rule of action which is imposed by the military power, and has no place in the institutions of this 
country, unless the articles of war established under the mutiny acts be considered as of that character. 
The prerogative of proclaiming martial law within this kmgdom is destroyed, as it would appear, by the 
Petition of liights." 

The latter pari of that definition I shall refer to in future. Martial law is th.9 
absolute will of the conimander-in-chief ; his will is substituted for law ; apd 
that is the power that is clHiined now by many of our generals iu the field ; it 
is claimed and exercised to-day by tte President of the United States through 
his subordinates, his generals in the field. It is a power which, whenever exer- 
cised, iu my judgment is an overthrow of the Constitution of the country. 
What are the poweis of the President ? His powers are limited by the funda- 
mental law. The Constitution says "he shall take care that the laws are faith- 
fully executed," The Constitution, treaties, and laws made in pursuance therie- 
of are the laws the President is to see executed ; if he goes beyond these he 
violates the Constitution, The President has no legislative or judicial power. 
Under the Constitution the judicial power is conferred on a distinct and inde- 
pendent body of magistracy, the judiciary. The legislative functions are devol- 
ved on a separate and distinct body of magistrates, namely, the Legislature, of 
which we are a part. If you concede to the President the power to declare 
martial law, you clothe him with power to overthrow the Constitution and sus- 
pend all the laws, and his will becomes the law. He is then invested with exe- 
cutive, legislative, and judicial functions, and becomes an absolute despot. In 
our Government the President can exercise no implied powers; the exercise of 
all such powers is, by the Constitution, conferred upon another and difterent 
body of magistracy. Congress alone can exercise implied powers. Such is 
the express language of the Constitution. The last clause of the eighth sec- 
tion of the first article of the Constitution declares that Congress shall have 
power. 

"To make all laws which shall be necessary and proper for carrying into execution the foregoing pow- 
ers and all other powers vested by this Conststution in the Government of the United States or in any 
department thereof." 

The President can legitimately exercise no power except such as is conferred 
upon him by express provisions of the Constitution and the laws and treaties 
made in pursuance thereof. 

Those who are charged with the preservation of the Constitution have nq 
right to overthrow it. The Constitution secures tp thQ people certain rights, 
certain immunities, and certain privileges, which every citizen in this broad 
land is entitled to; and there is no power on earth, save the sovereignty, to wit, 
the people of the States of the Union themselves, that has the legitimate right 
or power to alter, abridge, set aside, or suspend. The sovereignty, the people 
of the States of the Union, through their representatives, have the right and 
power to amend, alter, or change the Constitution in the manner prescribed in 
the' Constitution. Then there is left to the sovereigty, the people, in the las,t 
resort, the divine right of revolution by which they may, by force, throw off a 
Government which they cannot rid themsevles of otherwise, when it becomes 
oppressive and subversive of their liberties. The Corjstitution says that " qo 
bill of attainder or ex post facto law shall be passed ;" and then it says many 



18 

otber tilings, a few of which I will read, from the amendments to the Constitu- 
tion, which set forth some of the rights secured to the people : 

"Art. 1. Congress shall make no law respecting ^he establishment of religion, or prohibiting the free 
exercise thereof; or abringing the freedom of speech, or of the press; or the right of the people peacea- 
bly to assemble, and to petition the Government for a redress of grievances. 

"Art. 2. A well-regulated militia, being necessary to the security of a free State, the right of the people 
to keep and bear arms, shall not be infringed. 

"Akt. 3 No soldier shall, in time of peace, be quartered in any house withhout the consent of the owner, 
nor in time of war but in a manner to be prescribed by law. 

"Art. 4, The right of the people to be secure in their persons, houses, papers, and effects against un- 
reasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable 
cause, siiiiported by oath or affirmation, and particularly describing the place to be searched, and the per- 
sons or things to be seized. 

"Art. 5. No person sliall be held to answer for a capital or otherwise infamous crime, unless on a pre- 
BOntnicnt or indictment of a grand jury, except in cases arising in the land or naval forces, or in the mili- 
tia, when in actual service in lime of war or public danger; nor shall any person be subject for the same 
offence to be twice put in jeopardly of life or limb; nor shall be compelled in any criminal case to be a 
witness against himself, nor be deprived of life, liberty, or property without due process of law ; nor shall 
private pro))erty be taken for public use without just compensation. 

"Art. 6. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by 
an imjiartial jury of the State and district wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed of the nature and cause of the accusa- 
tion, to be confronted with the witnesses against him, to have compulsory process for obtaining witnessea 
in his favor, and to have the assistance of counsel for his defence. 

''Art. 7. In suits at common law, where the value in controversy shall exceed twenty dollars, the right 
of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court 
of the United States than according to the rules of the common law. 

"Art. S. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punish- 
ments inflicted." 

These are rights secured to the people of the United States by the Constitu- 
tion of our fathers ; and if you clothe the President with the power to declare 
martial law, you not only overthrow all these rights, but you overthrow our en- 
tire institutions, tbe President's will becomes the law instead of the Constitution 
of the country. Senators, if you clothe him with that power, you give him the 
power to destroy your free government. If he has the right to declare martial 
law in one city, say in the city of St. Louis, he has the right to declare it in a 
whole State ; he is the judge of the necessity. Indeed, martial law has been 
declared in the entire State of Missouri. If the President has aright to declare 
it in one State, he has a right to declare it in all the States. Suppose he should 
think the necessity exists — and those who contend for this doctrine say he is to 
judge of the necessity — to declare martial law throughout the whole United 
States, what will be tbe result ? Your Congress would be overthrown, or it 
would exist upon his will and pleasure only ; your courts would all be over- 
thrown, your State governments would be overthrown, and the President might 
enter this Hall, as Cromwell entered the chamber where the Long Parliament 
were sitting, and speak to us as Cromwell did to them, and tell us to go henc^. 
He might come to this Congress as Nepoleon did to the French Assembly on 
one occasion, and scatter us like beasts. This is the inexorable logic of the po- 
sition ; there is no escape from it. That power is claimed, and it is being exer- 
cised this day ; one of your generals is doing it with a vengence. When you 
clothe the President with this power, if the war should last twenty years, he 
can perpetuate his authority that length of time. What has been going on in 
Missouri ? The constitution of that State prescribes the right of suflfrage, and 
I will read an' extract from the constitution of Missouri upon that point, and 
show you what has been done in Missouri to prove how Abraham Lincoln could 
perpetuate his power as long as this war exists, if you admit this most mon- 
strous of all heresies that the President can declare martial law, and there 
would be nothing to prevent it unless an indignant people shall rise up and 
Bmite the usurper to the earth. The tenth section of the third article of the 
constitution of Missouri is in these words : 

" Every free white male citizen of the United States who may liave attained to the ago of twenty-one 
years, and who shall have resided in this State one year before an election, the last thrse months 
whereof shall have been in the county or district in which he offers to vote, shall be deemed a qualified 
elector of all elective offices: Provided, That no soldier, seaman, or marine in the regular Army or Navy 
of the United States shall be entitled to vote at any election in this State." 



19 



Section fourteen is in these words : 



I 



" The General Assembly shall have po\yer to exclude from every office of honor, trust, or profit, within 
this State, and from the right of suffrage, all persons convicted of bribery, perjury, or other infamous 
crime.' 

These are the only clauses in the constitution of Missouri touching the right 
of suftVage. Now what has occurred there ? A major general of the United 
States has issued this order : 

Headquaetkks Department of Missouei, 
St. Lottis, February 15, 1862. 
[General Order No. 41.] 

1. At the request of the acting Governor of Missouri, it is hereby ordered that at all future elections in 
this State, whether for State, municipal, county, or town officers, every voter^ill be required to take the 
oath of allegiance prescribed in article six of the ordinance of the convention, dated October 16, 1861. 
Officers Of the polls will see to the execution of this order. If they receive votes of persons not taking 
the oath, they will be arrested and tried for military offense, and the election declared null and void, 
* * * * « ♦* « * * * 

By command of Major General HsUeck. 

N. H. McLEAN, 
Assistant Ad juta7it Oeneral, 

The oath prescribed is in the following terms : 

"I do solemnly swear that I will support the Constitution of the United States and of the State of 
Missouri ; that I will not take up arms against the Government of the United States nor the provisional 
government of the State of Missouri ; nor give aid and comfort to the enemies of either during the present 
civil war. So help me God." 

There you see that a military oflBcer, as he says, according to the advice of 
.the acting Governor of Missouri, has taken upon himself to prescribe the quali- 
fications of voters, and those qualifications in direct conflict with the constitu- 
tion of the State where he is acting. All this appears to be approved by the 
President — he at least has not annulled it. Now, suppose that Abraham Lincoln, 
President of the United States, were to declare martial law throughout the 
whole Union, and we were on the eve of the election of the next President, and 
he himself was a candidate, could he not publish a military order declaring that 
all those who did not vote the Republican ticket, or even that all who did not 
vote for Abraham Lincoln for President should not be permitted to vote ? Could 
he not compel them to take an oath that they would vote in a certain way? 
Clearly. Thus you see that you clothe him, by this extraordinary doctrine, 
with the power to perpetuate his sway. There is no logical extrication from 
the position. Those who claim that the President or his commanders have a 
right to declare martial law, cannot escape from the position. 

General Halleck has done a little more in Missouri. I do not read these 
papers with any view of making a special assault upon him or anyborly else; 
but I wish it distinctly understood that I think General Halleck has transcended 
his power and overthrown the Constitution ; and he and the President both 
deserve and should receive the sternest rebuke that the representatives of a free 
people can give. I read them to elucidate the argument. That general made 
another very extraordinary order in Missouri, which I will now read : 

Hkadquaetfrs Department of Missouri, 
St. Louis, December 12, 1861. 
[General Orders, No. 24.] 

1. The suffering families driven by rebels from southwestern Missouri, which have already arrived here, 
have been supplied by voluntary c ntribntions made by Union men. Others are on the way, to arrive in 
a few diiys. These must be supplied by the charity of men known to be hostile to the Union. A list 
will be prepared of the names of all persons of this class who do not voluntarily furnish their quota, and 
a contribution will be levied on them of .^10,000, in clothing, provisions, and quarters, or money iu lieu 
thereof This levy will be made upon the following classes of persons, in proportion to theguit and prop- 
erty of each individual : First, those in arms with the enemy, who have property in this city. Second, those 
who have furnished pecuniary or other aid to the enemy, or to persons in the enemy's service, Third, 
those who have verbally, in writing or by publication, given encouragement to insurgents and rebels. 

2. Brigadier General, S. R. Curtis, United States volunteers, Lieutenant B. G. Farrar, provost marshal 
general,"and Charles Borg, Esq., assessor of the county of St. Louis, will constitute a hoard of assessor* 
for levying the aforementioned contribution. In determining the amount of property of the individuals 
aaesessed, the board will take into consideration the offltial assessment lists for municipal taxes. 

8. As soon as any part of the contribution has been assessed by the board, the provost marshal general 
will notify the parties assessed, their agents, or representatives, stating the amount of provisions, clothmg, 



J 



86 



or quarters, and the money value thereof, required of each, and if not furnished within the times specified 
in such notice, ho will issue an execution, and suflBcient property will be taken and sold at public auction, 
to satisfy the assessment, with costs, and apenalty of Ivventy-flvepcr cent, in addition. When buildings, or 
parts of buildings, arc to be used, and where any of the sufforors are to be quartered on families, cajre 
Bbould be taken to produce as little inconvenience to the owners or families as possible, this not beitig 
considered a military contribution levied upon the enemy, but merely a collection to be made from friends 
of the enemy for charitat)le purposes. 

4. If any person upon whom such assessment shall be made shall file with the provost marshal general 
an affidavit that he is a loyal citizen, and has been true to his allegiance to the United States, he will be 
allowed one week to furnish evidence to the board to vindicate his character; and if at the end of tlmt 
time he shall not be able to satisfy the board of his loyalty, the assessment shall be increased ten per cent., 
and the levy imm»idiately made. 

5. The supplies so collected will be expended for the object designated, under the direction of the pro- 
vost marshal general, with the advice of the State sanitary commission. Where money is received in lieu 
of sup|)lies, it will bo expended for them as they may be required. Any money not so expended will be 
turned over to the sanitary commission for the benefit of sick soldiers. A strict and accurate account of 
tUeir receipts and expenditures will be kept and returned to these headquarters. 

, 6. Any one who shall resist, or attempt to resist, the execution of these orders, will be Immediately W- 
rested and imprisoned, anjj will be tried by a military commission. 
By order of Major General Hallecfe. 

JOHN C. KELTON, A. A. G. 

Here you have another instalment of martial law. Here is an order from 
one of your generals in the field, taking $10,000 from citizens of St. Louis with- 
out judicial process — not as a military assessment, but in the way of charity, as 
he calls it, for a purpose prescribed by himself. Do you not see that generals 
Qow in the field are overthrowing the constitutions of the States and the Consti- 
tution of the Uuited States ; and yet you, who pretend to be friends of consti- 
tutional liberty, sanction it? Do you not know that by so doing you yield 
every sacred guarantee of your liberties contained in the Constitution of your 
country ? You even yield to the will of a despotic President the power of dri- 
ving you from these halls. Under this power he can at his will drive the Su- 
preme Court, and he can drive the State Legislatures from their places. He 
can do as Halleck has done — by his mere ipse dixit prescribe the qualifications 
of voters by military order ; and by levying assessments, as he has done on men 
at St. Louis, deprive the people of any State within his command of every shil- 
ling they have and all their property, and devote it to whatever purpose he 
pleases. The President suffered all this ; for I took to him the very order of 
General Halleck which has just been read, at the instance of a schoolmate and 
friend in Missouri, and told him its enormities, and asked him to have it cor- 
rected. He told me he would present the matter to his Cabinet. He kept the 
papers several days, and returned them with a very brief note, saying that he 
could not at present do anything with it. A people who will tamely submit 
to such an usurpation of their constitutional rights, to such an assault upon 
their dearest liberties and most sacred interests, do not deserve to be free; and 
unless they are aroused to a just appreciation of their rights and liberties, mili- 
tary despots will soon have their heretofore free limbs in chains and fetters. 
Such acts as these are being done, and, so far from doing anything here that 
would sanction in the least this assumed power of the Piesideut to declare mar- 
tial law, the Senate owes it to itself, owes it to the Constitution of the country, 
.in the name of the public liberties, to protest in the most solemn form against 
the extraordinary powers assumed by Major General Halleck and others in au- 
thority. As fiithful sentinels of liberty, as the guardians of the Constitution, 
fchosen by the people and the States, Congress should, in my judgment, in the 
most unequivocal manner, visit these usurpers witli the harshest censure. Wb 
tan, however, get no censure against those who overthrow the Constitution it 
these degenerate days. 

Now let me examine for a hioment the proposition of Mr. Adams. I have 
here a speech made by the Senator from Massachusetts, (Mr. Sumner,) in which 
he rests this doctrine upon the authority of Mr. Adams. The honorable ch^ir- 
itian of the Comitiittee on the Judiciary (Mr. Tiiumbtll) rests it on the war 
power; but I must do him the justice to say, that I do not think he has ever 
claimed that the President had the right to proclaim martial law. He says tHe 



power to confiscate necessarily flows from tLe power to carry on the war. In 
that, I think, he is greatly mistaken. But, sir, I will read an extract from the 
speech of the Senator from Massachusetts, made at Worcester, in October last : 

" But there is another agency that may be invoked, which is at the same time under the Constitution 
and above the Constitution." 

That is queer phraseology, under it and above it. 

'■ I mean martial law. It is under the Constitution, because the war power to which it belongs is posi- 
tively recognized by the Constitution. It is above the Constitution, because when set in motion, lilie ne- 
cessity, it knows no other law." 

I read in Horace when I was a boj^, necessitatas non habet legem, and the 
gentleman applies that ancient maxim to this case. 

" For the time it is law and Constitution." 

It is strange that one who claims to be educated in all the rtfiaements of New 
Etigland liberty, should say that the war power is above the Constitution and 
the law. I have been taught to believe that there was no well defined liberty 
8'ave in the supremacy of the law, that there was no regulated liberty save 
■where the law was supreme; but it seems that the code of the Senator from 
Massachusetts is, that this martial law exists in this coiintry,^nd that it is above 
all law and above the Constitution : 

" The civil power, in mass and in detail, is superceded, aiid all rights are held subordinate to this mili- 
tary magistracy. All other agencies, small and great, executive, legislative, and even judicial, are ab- 
sorbed in this transcendent triune power, which, for the time, declares its absolute will, while it holds 
alike the scales of justice and the sword of the executioner. The existence of this power nobody ques- 
tions. If it has been rarely exercised in our country, aud never in an extended manner, the power none 
the less has a fixed place in our political system. As well strike out the kindred law of self-defense, 
which belongs alike to States and individuals. Martial law is only one form of self-defense. 

" That this law might be employed against slavery was first proclaimed in the House of Representatives 
t^ a Massachusetts statesman, who was a champion of freedom— .John Quincy Adams. [Api>lause.] His 
authority is such that I content myself with placing the law under the sanction of his name, which 
becomes more authoritative when we consider the circumstances under which he first put it forth, then 
repeated, and then again vindicated it '' 

" It was as early as the 25th May, 1836, that Mr. Adams first expounded what he called ' the war 
power and treaty-making power of the Constitution.' Then it was that he declared: 

"'From the instant that your slaveholding States become the theater of war, civil, servile, or for- 
eign, from that instant the war powers of Congress extend to interference with the institution of sla- 
rery in every way in which it can be interfered with, from a claim of indemnity for slaves taken or 
destroyed, to the cession of a State burdened with slavery to a foreign Power.' 

" Again, on the Tth of June, 1S41, after many years of reflection and added experience in public life, he 
terrified slavemasters by showing that universal emancipation might be accomplished through this extra- 
Cffdinary power.'' 

"Afterwards, on the 4th of April, 1842, for the third time he stated the doctrine in the House of Rep- 
iWSentatives and challenged criticism or reply. I forbear to read the whole speech, though it is worthy 
of constant repetition. An extract will suffice. 

"'I lay this down as the law of nations. I say that the military authority takes for the time the 
place of all municipal institutions, slavery among the rest. Under that state of things, so far from its 
being true that the States where slavery exists have the exclusive management of the subject, nut only 
the President of the United States, but the commander of the Army has potoer to order the universat 
egnanaipation of Haves.' [Applause.] 

"And then again he announces in words further applicable to the present hour: 

"'Nor is this a mere theoretic statement. Slavery was abolished in Columbia first by the Spanish 
G«neral Murillo, and secondly by the American General Bolivar. It was abolished by virtue of a milita- 
ry command given at the head of the army, and its abolition continues to be law to this day.' 

"The representatives of slavery fumed and rage<l at these words, and at their venerable .author; but 
nobody answered them. And they have stood ever since in the records of Congress, firm and impregnable 
as adamant." 

That is the position which is taken under shelter of the name of Mr. Adams. 
The Senator was very much mistaken when he said that nobody answered it. 
It is well for the Senator that he contented hiiriself with resting it upon a dic- 
tum of John Quincy Adams. It aft'ords but another evidence that very great 
and very learned men often, when distempered by a single idea — as I regret to 
say Mr. Adams was in the latter part of his life on the subject of African slave- 
ry — ^give utterance to the greatest and most astounding heresies, Mr. Adams 
did it in this case. If the Senator had looked into the Constitution of his 
country, if he had looked into the judicial decisions and into the legislative de- 
cisions upon this subject, or if he had looked into the elementary writers, he 
would have found precedent against hitn ; brit it is a very cofav^tiierit way to 



22 

cloak one's self under the mantle of a great name, particularly wlien it is sought 
to impose on the ignorant and credulous. I will show you that this position of 
Mr. Adams was answered, answered at the time, answered in a manner that the 
Senator from Massachusetts and all the host that follow his standard never have 
met, and never will meet, in successful argument. It was answered by a dis- 
tinguished citizen of Kentucky, by Judge Nicholas, an extract from the decision 
of whom I read a moment ago on another branch of the subject. Judge 
Nicholas issued a pamphlet entitled Martial Law, ia 1842, in which he reviewed 
the position of Mr. Adams in a bold, clear, lucid, logical argument, that I defy 
the Senator from Massachusetts to meet successfully. I shall have occasion to 
read a few extracts from that pamphlet before I am through; but before I do 
that I beg to read from Mr. Lieber. He speaks upon this, as he does upon all 
other subjects discussed by him, with great force and wisdom. At page 110 of 
his work on Civil Liberty and Self Government, he says: 

" All continental Governments which were bent on defeating the action of the new constitutions, even 
while they existed, resorted to declaring large cities and entire districts in ' a state of seige.' thus subject- 
ing them to martial law. All absolute Governments, whether monarchical or democratic, have ever found 
the regular course of justice inconvenient, and made war upon the organic action of the law, which prov«« 
its necessity as a guarantee of liberty. 

" ft is obvious that whatever wise provisions a constitution may contain, nothing is gained if the power 
of declaring martial law be left in the hands of the Executive ; for declaring martial law, or proclaiming 
a place or district in a state of seige, simply means the suspension of the due course of law, of the right 
of habeas c.orjnis, of the common law. and of the action of courts. The military commander places the 
prisoners whom he chooses to withdraw from the ordinary courts before courts-martial. There were many 
French departments in a ' state of seige' before the coiij) d 'etat. After it, all France may be said to have 
been so." 

Thus a wise philosopher speaks. At page 117, the same author says: 

"Ever since standing armies have been established, it has been necessary, in various ways, to preyient 
the army from becoming independent of the legislature. There is no liberty — for one who is bred in thS 
Anglican school — where there is not a perfect submission of the army to the legislature of tlie people. We 
hold it to be necessary, therefore, to make but brief appropriations for the army. The King of England 
cannot raise an army, or any part of it, without act of Parilamenl ; the army estimates are passed for oi»e 
year only, so that were Parliament to refuse appropriations after a twelve month the army would be dis- 
solved. The mutiny bill, by which power is given to the king to hold courts-martial for certain offenses 
in the army, is likewise passed for a year only ; so that, without repassing it, the crown would have no 
power even to keep up military discipline.'' 

Thus you see that our English ancestors and their descendants on the other 
side of the water, have been more rigid on this subject than we have been. 
Our Army regulations are a permanent statute ; their mutiny act that gives 
them the right to hold courts-martial is passed every year. Here, under the 
Constitution, our appropriations for the Ariny can extend to two years ; they 
limit theirs to one year. 

Upon the question of the power to declare martial law, I fiud but one decis- 
ion where the matter came directly in issue, though there are many decisions 
that touch it incidentally. There is a case in the third volume of Martin's Lou- 
isiana Reports, (Johnson vs. Duncan et al., syndics,) where the question was 
made directly; and that the Senate may see it, I will read one of the grounds 
before the court : 

" A motion that the court might proceed in this case, has been resisted on two grounds : 
"I. That the city and its environs were, by general orders of the officer commanding the military district, 
pat, on the 15th of December last, under martial law." 

There the point was made directly that the functions of the court were sus- 
pended in consequence of martial law having been proclaimed in New Orleans, 
80 that there could be no dodging it. In delivering the opinion of the court, 
Judge Martin said : 

" At the close of the argument, on Monday last, we thought it our duty, lest the smallest delay should 
countenance the idea that this court entertain any doubt on the first ground, instantly to declare, •»ii)a 
voce, (although the practice is to deliver our opinions in writing,) that the exercise of an authority, vested 
by hiw in this court, could not be suspended by any man. 

" III any other State but this, in the population of which are many individuals, who, not being jierfectly 
acquainted witli their rights, may easily be imposed on, it could not be expected that the judges of thU 
court should, in complying with the constitutional injunction, in all cases to adduce the reasons on wHoh 



23 



their judgment ix founded, take up much time to show that this court is bound utterly to rtiarefiard what 
is thus called mrtriia^ itac, if anything be meant thereby but the strict enforcing of the rules and article 
for the government of the Army of the United States, established by Congress, or any act of that body rela- 
ting to miliiary matters, on all individuals belonging to the Army or militia in the service of the United 
States. Yet we are told that, by this prochunation of martial law, the officer who issued it has conferred 
on himself, over all his fellow-citizens within the space which he has described, a supreme and unlimited 
power, which, being incompatible with the exercise of the functions of civil magistrates, necessarily su- 
persedes them. 

" This bold and novel assertion is said to be supported by the ninth section of the first article of the Con- 
stitution of the United States, in which are detailtd the limitations of tlie power of the Legislature or the 
Union. It is there provided that tlie privilege of the writ of habeas corpua nhall not he i<uf<pended, un- 
less when in cases of invasion or rebellion, the public safety may I'equire it. We are told that the com- 
mander of the military district is the p(Tst)n who is to suspend the writ, and is to do so whenever, in his 
Judgment, the public salety appears to reciuire it; that, as he may thus paralyze the arm of the justice of 
his^ountry in the most important case, the protection of the personal liberty of the citizen, it follows that, 
as he who can do the more can do the less, he can also suspend all other functions of the civil magistrate, 
which he does by his proclamation of martial law." ******* 

"The proclamation of martial law, therefore, if intended to suspend the functions of this court or its 
members, is an attempt to exorcise powers thus exclusively vested in the Legislature. 1 therefore cannot 
hesitate in saying tliat it is in this respect null and void. If, however, there be aught in the Constitution 
and laws of tlfe United States that really authorizes the commanding officer of a military district to sus- 
pend the laws of this State, as that Constitution and these laws are paramount to those of the State, they 
must regulate the decision of this court. ' ****** 

" If it be said that the laws of war, being the laws of the United States, authorize the proclamation of 
martial law, I answer that in peace or in war, no law can be enacted but by the legislative power. In 
England, from whence the American jurist derives his principles in this respect, ' martial law cannot be 
used without the authority of Parliament.' (5 Comyns, 229.) The authority of the monarch himself is 
insufficient. In the case of Grant rs. SirC. (Jould, (2 Hen. Bl. 69,) which was on a prohibition (applied 
for in the Court of Common Pleas) to the defendant as judge advocate of a court martial to prevent the 
execution of the sentence of that military tribunal, the counsel, who resisted the motion, said it was not 
to be disputed that martial law can only be exercised in England so far as it is authorized by the mutiny 
act and the articles of war, all which are established by Parliament or its authority, and the court declar- 
ed it totally inaccurate to state any other martial law as having any place whatever within the realm of 
England. In that country, and in these States, by martial law is understood the jurisprudence of those 
cases which are decided by military judges or courts-marshal. When martial law is established and pre- 
vails in any country, said Lord Loughborough, in the case cited, it is totally of a difft rent nature from that 
which is inaccurately culled martial law, (because the decisions are by a court-martial,) but which bears 
no affinity to that which was formerly attempted to be exercised in this kingdom ichich icas contrary to 
the Constitution, and which has been for a century totally exploded. When martial law prevails, contin- 
ues the j udge, the authority under which it is exercised claims jurisdiction over all military persons in 
all circumstances. Even their debts are subject to inquiry by military authority. Every species of offence 
committed by any person who ajipertains to the army is tried, not by a ciyil judicature, but by the ju- 
dicature of the corps or regiment to which he belongs. 

" This is martial law as defined by Hale and Blackstone, and which the court declared not to exist In 
England Yet it is confined to military persons. Here it is contended, and the court must admit if we 
sustain the objection, that it extends to all persons, that it dissolves for awhile the government of the 
State. 2' 

" Yet, according to our laws, all military courts are under a constant subordination to the ordinary courts 
of law. Officers who have abu.sed their powers, though only in regard to their own soldiers, are liable to 
prosecution ia a court of law, and compelled to make satisfaction. Even any flagrant abuse of authority 
by members of a court-martial, when sitting to judge their own people, and determine in cases entirely of 
a military kind, makes them liable to the animadversion of the civil judge. (Delolme 447, Jacob's Law 
Diet., verba court-martial.) How preposterous then the idea that a military commander may, by his own 
authority, destroy the tribunal established by law as the asylum of those oppressed by military despotism.' 

> 

And Judge Debigny, in the same case, said : 

" I will therefore examine how Tnartial laro ought to be understood among us, and how far it Intro 
duces an alteration in the ordinary course of government 

"To have a correct idea of martial law in a tree country, examples must not be sought in the arbitrary 
conduct of absolute Governments. The monarch, who unites in his hands all the powers, may delegate 
to his generals an authority as unbounded as his own. But in a Republic, where the Constitution has 
fixed the extent and limits of every branch of government, in time of war as well as of peace, there can 
e«l8t nothing vague, uncertain, or arbitrary, in the exercise of any authority. 

"The Constitution of the United States, in which everything necessary to the general and individual 
security has been foreseen, does not provide that in times of public danger the executive power shall 
reign to the exclusion of all others. It does not trust into the hands of a dictator the reins of the Govern- 
ment. The framers of that cliarter were too well aware of the hazards to which they would have exposed 
the fate of the Republic by such a provision; and had they done it, the States would have rejected a 
Constitution stained with a clause so Threatening to their liberties. In the meantime, cnnscious of the 
necessity of removing all imi)ediments to the exercise of the executive power in cases of rebellion or 
invasion, they have permitted Congress to suspend the privilege of the writ of habeas corpus in those 
circumstances, if the i)ublic safety should require it. Thus far and no further goes the Constitution. 
Congress has not hitherto thought it necessary to authorize that suspension. Should the case ever hap- 
pen,"it is to be supposed that it would be accompanied with such restrictions as would prevent any wanton 
abuse of power. ' In England,' says the author of a justly celebrated work on the constitution of that 
country, ' at the time of the invasion of the Pretender, assisted by the forces of hostile nations, the habeas 
corpus act was indeed suspended, but the executive power did not thus of itself stretch its own authority 
the precaution was deliberated upon and taken by the representatives of the people; and the detaining of 
individuals in consequence of the suspension of the act was limited to a fixed time. Notwithstanding the 
just fears of internal and hidden enemies which the circumstances of the times might raise, the deviation 
from the former course of the law was carried no further than the single point we have mentioned. Per- 
sons detained by order of the Government were to be dealt with in the same manner as those arrested at 
the suit of private individuals ; the proceedings against them were to be carried on no otherwise than in 
a public place ; they were to be tried by their peers, and have all the usual legal means of defence allowed 
to them, such as calling of witnesses, peremptory challenge of jurors,' &c And can it be asserted that 
while British subjects are thus secured against oppression in the worst of times, American citizens are 



24 

left at the mercy of the will of an individual, who may in certain cases, the neceiidty of which is to b4 
judged of hi/ hi'mselfn ssume a supreme, overbearing, unbounded power? The idea is not only repug- 
nant to the principles!! any free government, but subversive of the very foundulion of our own. 

" Under the Constitu ion and laws of the United Stales, the Presiilent has a right to call, or cause to b« 
called into the service of the United States, even the whole militia of any part of the Union, in case of 
invasion. This power, exercised here by his delegate, has placed all the citizens subject to militia duty 
under military authority and military law. That I conceive to be the extent of the martial law, beyon^ 
which all is usurpation of power. In that ftate of things the course of judicial proceedings is certaiPiV 
much shackled, but the judicial authority exists, and ought to be exercised whenever it is practicat»le. 
Even where circumstances have made it necessary to suspend the privilege of the writ of habeas corpuf, 
and such suspension lias been pronounced by the competent authority, there is no reason why the admij*- 
Istration of justice generally slmuld be stopped. For, because the citizens are deprived temporarily of Hip 
protection of the tribunals as to the safety of their persons, it does by no means follow that they cannot ha>j^ 
recourse to them in all other cases. 

"Tlie proclamation of the martial law, therefore, cannot have had any other effect than that of placing 
under military authority all the citizens subject to militia service. It is in that sense alone that the vag;^ 
expression of martial law ought to be understood among us. To give it any larger extent would Ije tra^_p- 
ILng upon the Constitution and laws of our country." 

Chancellor Kent, when he was chief justice of New York, in the case of 4 
habeas corpus for the release of a man arrested by military authority,' (reported 
in 10 Johnson, 333,) said: 

"Nor can we hesitate in enforcing a due return to the tvrit when we recollect that in this country t/i* 
law l-norcs no nuperior; and that in England her courts have taught us, by a series of instructions and 
examples, to enact the strictest obedience to whatever extent the persons to whom the writ is directed 
may be clothed with power or exalted in ranlf. 

" If ever a case called for the most prompt interposition of the court to enforce obedience to its process, 
this is one. A military commander is here assuming criminal jurisdiction over a private citizen, is holding 
him in close confinement, and contemning the civil authority of the State." ' ' 

In addition to these authorities I find the following note to the case in 3 
Martin : 

" The doctrine established in the first part of the opinion of the court in the above case, is corroborated 
b)' the decision of the district court of tlie United States for the Louisiana district in the case of United 
States vx JacktKm, in which the defendant, having acted in opposition to it, was fined $1,000 In Lamb^t 
case, Judge Bay, nf South Carolina, recognized the definition of martial law given by this court, expressing 
himself thus : ' If by martial law is to be understood that dreadful system, the Za(o of arms, which in former 
times was exercised by the King of England and his lieutenants, when 7d.i word was the law, and his 
viil the power by which it was exercised, I have no hesitation in saying that such a monster could not 
exist in this land of liberty and freedom. The political atmosphere of America would destroy it in en> 
bryo. It was against such a tyrannical monster that we triuinphed in our revolutionary conflict. Oiir 
fathers sealed the conquest by their blood, and their posterity will never permit it to tarnish our soil By 
its unhallowed feet, or harrow up the feelihgs of our gallant sons by its ghastly appearance. All our civil 
institutions forbid it; and the manly hearts of our countrymen are steeled against it. But if by this mili- 
tary code are to be understood the rules and regulati<m9 for the government of our men inarms, whei} 
marshaled in defence of our country's rights and honor, then I am bound to say there i» nothing uucpnsti: 
tiitional in such a system..' " Car. law reports, 330. 

Now, sir, it is plain from the authorities I have read, that the principle an- 
nounced by Mr. Adams, under whose name the Senator from Massachusetss 
takes shelter, has no place in the constitution of your conntry, as expounded 
by the court-s. I know it has been said by some persons that General JacksQij, 
when he exercised the power of declaring martial law at New Orleans, was susr 
tajned by the lav; but allow me to say to the Senate that that act of Gen,er^ 
Jackson h;is been denounced in every form as unconstitutional. It was so de- 
clared by the Supreme Court of Louisiana in the case I have read ; it vyas 80 
declared by the district court of the United States for the district of Louisiana; 
and the same principle was declared by Bay in South Carolina, and by Kent ija 
New York. Allow me to tell you that comniittees in both Houses — a comaijfe: 
tee of the Senate and committee of the House of Representatives declared the 
sanje thing. I will read a short extract from the report of the Judiciary Com- 
mittee of the lower House, a report made, I believe, by the worthy and talented 
Senator from Maryland, (Mr. Pearce,) then a member of the House of Repr^ 
Sjentatives: 

"There is no martial law known to the laws of the United States but such as Congreep 
has provided for the Government of the AriDy. That other martial law, which General 
Jaekson claimed a right to establish, was never acknowledged in our country, and has 
never been tolerated in England since the time of Williaip III, more tiian one hundre,^ 
and fifty years since, when, in the Decleration of Rights, it was provided 'that the pre- 
tended power of suspending laws, and the execution of laws by regal authority, without 
C9n3ent of Parlja.rjient, ig illegal ;' aud ' that the pretended power of dispensing with Iftw^ 



25 . 

by regal authority, as it hath h'e'e'a assumed a'nd ei'fercJse'd of late, is illegal' Tliese d'^c- 
Tarations were afterwards, to make assurance doublj' sure, incorporated in the Bill of 
Rights. (See D'e Lolme on the Constitution, Stephens's edition.) Hume, in his History 
of England, (fifth vol., 454,) iu stating the instruments of power and oppression employed 
by the Tudors and the Stuarts, after describing the terrible jnrisdietiou of the courts of 
the Star Chamber and High Commission, says: "But martial law went beyond even 
these two court?, in a prompt, arbitrary, and violent method of decision. Whenever 
there was any insurrection or public disorder the crown employed martial law ; and it 
Was during that time exercised not only over the soldiers, but over the whole people. Any 
Otoe might be punished as a rebel, or an aider and abettor of rebellion, whom the provost 
marshal or lieutenant of the county pleased to suspect.' 

"It was this martial law which the Declaration of Rights put to an end in England, 
and which it has reserved for a country, where the people are the source of all power, to 
see revived and enforced by a republican general. This sort of martial law has no fi.xed 
boundaries, no prescribed principles. 'It is,' says Blackstone, (first vol., 413,) 'built on 
no settled principles, but it is entirely arbitrary in its decisions, and is, in truth, no law, 
but something indulged rather than allowed as a law — a temporary excrescence bred out 
of the distemper of the State.' 

" Lord Loughborough, in 1792, (2 Henry Blackstone, 99,) declared that this vast, vague, 
And most dangerous power had no existence in England. 'It was contrary to the con.sti- 
tntion, and had been for a century totally exploded.' So are the authorities in our own 
Country." 

We find judges io England, and all their law-writers, declaring there is no 
such power, yet it is claimed here, when the provisions in our Constitution are 
certainly more explicit than those in the Petition of Right or the Bill of Rights. 

I dislike to trouble the Senate with decisions, but the power claimed is so 
extraordinaiy, so subversive of the Constitution and every principle of civil 
liberty, that I should like to put the question beyond dispute by the clearest 
and most indisputable authority. I will read one or two very brief extracts 
from a debate iu the Senate on refunding the fine imposed on General Jackson 
by Judge Hall. Mr. Bayard said : 

"Martial law is a code specially applicable to the Army and the Navy and militia when 
called into actual service, and is a distinct code for their government Even in time of 
war, the private citizen, the non-combatant, cannot be subjected to the code which gov- 
erns those engaged in warfare without a manifest violatioif" of his civil rights." 

Yet we find that this man, General Halleck, subjects to punishment those wlio 
are not in the military, and makes an assessment which in the very order he 
says is not a military assessment, going upon the theory announced by the Sen- 
ator from Massachusetts, that martial law overthrows the whole civil law ; that 
the Constitution and everything gbes with it; in the language of Mr. Adams, 
in the speech from which I have just read, " it is all swept by the board." la 
that debate, on the refunding of General Jackson's fine, Mr. Buchanan said: 

"'The Senator from Delaware (Mr. Bayard) had been discharging his heavy artillery 
against nothing. He bad not ^ven a target to aim at. It had never been contended on 
this floor that a military commander possessed the power, under the Constitution of the 
United States, to declare martial law. No such principle had ever been asserted on this 
[the Democratic] side of the House. He had then expressly declared (and the published 
report of the debate, which he had recently examined, would justify him in this assertion) 
that we did not contend, strictly speaking, that General Jackson had any constitutional 
right to declare martial law at New Orleans ; but that, as this exercise of power was the 
only means of saving the city from capture by the enemy, he stood amply justified before 
his country for the act. We placed the argument not npon the ground of strict consti- 
tutional right, but of such an overruling necessity as left General Jackson no alternative 
between the establishment of martial law or the sacrifice of New Orleans to the rapine 
and lust of the British soldiery." 

Mr. Berrien, •Who reipotted the bill from the Judiciary Coramittee of the 
Senate, said in the report : 

"In the absence of any specific instructions from the Senate, and looking to the discna- 
Aoni which have led to the reference of the bill, the committee have come to the con- 



26 

elusion that they will best fulfill their duty to the Senateja}' reporting it with an amenfi- 
ment, placing the restoration of the fine imposed on General Jackson by Judge Hall on 
grounds which do not involve any censure of either of the parties in this bygone trans- 
action, nor in any degree arraign the condnct of the patriotic citizens of New Orleans; 
but simply protect the Senate from the possible inference that, in passing this bill, it has 
acknowledged the legal authority of a military officer to establish martial law within tb« 
limits of this free Republic. They accordingly' report the bill with an amendment." 

I cuiild give many other extracts, but I shall forbear, I have certainly 
shown, by the highest authority, that the assertion of Mr. Adams was wholly 
unfounded; and I defy the Senator from Massachusetts, who places the author- 
ity of his statement under the shield of that name, to meet the argument, to 
adduce the law, the decision of the court, or to find the assertion of the power 
in any elementary writer of any note, I have shown that the power does not 
exist from the elementary books; I have shown it from the decisions of the 
courts; I have shown it from the reports of committees of Congress ; I have 
shown it from the debates of Congress, I venture to assert that the power will 
ever rest under the shade of the name of John Quiucy Adams. A great name, 
I admit, but no more a&tounding heresy ever fell from the lij)s of a great man — 
one utterly subversive of the Constitution, and one that if carrie'.l out would 
overthrow our liberties, and give to any commander in time of war the right 
to proclaim martial law, and substitute his own will for the Constitution and 
the established law of the land. 

On the point of its being sanctioned by the laws of nations, I will read an ex- 
tract from the able and lucid pamphlet of Judge Nicholas, to which I referred 
a moment ago. It disposes of that position of Mr. Adams in a more clear and 
lucid manner than I could do were I to make the eftbrt : 

" As to Mr. Adams's other authority, the law of nations, it is difficult to understand 
what bearing they can have upon a question of lawful power within this Union. They 
maj' define the riglits of the conqueror and the duties of the conquered; but that isnot 
what Mr. Adams means. He contemplates an unsuccessful or undetermined invasion 
merely, and sajs that 'an invaded country has all its laws and municipal institutions 
Bwept, by the board, and niajtial law takes the place of them,' with an incidental power 
to both our own and the foreign commander to emancipate the slaves. Eminent as Mr. 
Adams is as an authority on the law of nations, yet his opinion must siu-ely yield to that 
of the whole American people, as expressed to their Declaration of Independence. This 
very mode of annoyance towards an enemy by inciting a servile insurrection, is there de- 
nounced as contrary to the law of nations and the usages of civilized warfare. It is ranked 
in atrocity with that other infamous practice of the English Government, the allying itself 
with the scalping knife ;iiid tomahawk. According to the better opinion, then, any in- 
vading foi'eigti comHiHn<ler, who should issue such a proclamation as the one indicated by 
Mr. Adams, would thei'eby cast himself and those under his command out of the pale of 
the protection of the usages of civilized warfare. Much rather, therefore, would any 
commander of ours be considered as absolving himself from the protection of all law, by 
such a course, and subjecting himself to be rightfully shot by any one who chose so to rid 
the country of so infamous an incendiary. 

"The American people have heretofore lived under the fond delusion that they had the 
exclusive privilege of making constitutions and laws for themselves, and that the com- 
bined will of all the nations of the earth could not rightfully add to or alter these laws 
in the smallest particular, so far as they operate within our own territory. Nor do the 
laws of nations themselves make any pretension to the power asserted by Mr. Adams in 
their behalf. There is no principle of international law better settled, probably none 
other about which there is less difference of opinion, than that the laws of one nation 
cannot operate within the territory of another : and, by consequence, neither can the com- 
bined laws of two, three, or twenty nations, so operate within the territory of another 
nation. 

"There is a class of politicians in this country who have long been suspected of having 
no great love or admiration of our republican institutions, viewing them as a useless ex- 
periment which must ultimately give way to monarchical government, and therefore as 
ratli»-r impatient for the advent of some bold, great man, sufficiently powerful to do away 
with the idle trumpery (^f a Constitution, and relieve us from the trouble of governing 
ourselves. 1 must confess it has been heretofore supposed that Mr. Adams did not belong 



27 

to this scliool of politicians. But it seems he goes a great wJy beyond them. They were 
merelj' suspected of sighing for a domestic usurper. He is for subjecting our Constitu- 
tion and laws to the mercy of a foreign invader also, when he thinks it necessary, and to 
keep it up as long as he thinks it necessary; but for fear an American commander would 
never have the temerity or iniquity to attempt what he has iu view, he claims that th« 
power rightfully belongs to a foreign invader also, having in his eye, no doubt, an inva- 
der in pai'ticnlar, that never scrupled about means, however, infamous, in tie attainment 
of ends however iniquitous. 

"If a foreign invader can strike dead, in the hands of its owners, $400,000,000 worth 
(rf property by his mere proclamation, though he be defeated and driven from our terri- 
tory the next day, it is by a most precarious tenure indeed that we hold all which Gov- 
ei'nment was instituted to protect and guard. For Mr. Adams does b}' no means limit 
this power to a mere emancipation of slaves, but says it sweeps the whole Constitution 
by the board, and substitutes the invader's will in its place, He no doubt looks to that 
admired British government for the invading commander, who is, by proclamation, to 
emancipate the three millions of his black fellow-citizens. But he should remember 
that, though it be now the pleasure of that immaculate government to preach a crusade 
against negro slavery, s!ie was formerly the patron, and even attempted to be the monop- 
olizer, of the slave trade; that she even forced the slaves upon this country in despite the 
remonstrance of our fathers, as she is now attempting to force her opium upon the Chi- 
nese; that she may again change her views, drop her crusade against negro slavery, and 
preach a new crusade, as formerly, against the Protestant religion, or any other cher- 
ished right of New England. Does that also lie at the mercy of her proclamations? Can 
she thus put down that religion, and put up the Catholic or any other in its place ? 

"But, says Mr. Adams, this is not a mere theory — 'his doctrine has been carried into 
practical execution.' He cites us to the example of those eminent man-slayers and ex- 
positors of the law of nations and of the usages of civilized warfare, Generals Morillo and 
Bolivar. He says they both did the thing in Colombia, though he does not explain how ; 
after one had emancipated all the slaves, it was still left for the other to do. Neither 
has he done his argument all the justice he might in favor of the might of military power, 
from the example of the best of those two eminent expositors. He forgot t-o tell us that 
Bolivar, after having emancipated the blacks, by virtue of the same martial law enslaved 
the whites, and placed a crown on his own head. We of the South even, who are so 
much intMested in the subject of slave property, would deem this a much more striking 
and convincing example of the extent of military power than that of the mere emanci- 
pation of slaves." 

It is a principle iu the American constitutions, not only in the Constitution of 
the United Stt^tes, but it is, I believe, distinctly avowed and asserted in the con- 
stitution of every State of the Union, that the military shall be subordinate, and 
shall be kept iu subjugation to the civil power, that the law shall be supreme. 
It is asserted distinctly iu the constitution of Massachusetts. On that point I 
will read oue more short extract from Judge Nicholas's pamphlet: 

" How differently from his forefathers of Massachusetts does Mr. Adams consider the 
influence of foreign laws and the overshadowing supremacy of military power. They 
say in their constitution : ' Tlie people of this Commonwealth are not controlable by any 
other laws than those to which their constitutional represetative body have given their 
consent.' He savs they are controllable by the arbitrary will of a military chief, foreign 
or domestic, and" that even their constitution is in subordination to the law of war and 
the law of nations. Their Provincial Congress, writing to the Continental Congress, in 
May, 1775, on the necessity of their 'taking up civil government,' said: 'As the sword 
in all free States should be subservient to the civil powers, and as it is the duty of the 
magistrate to support it for the people's necessary defence, we tremble at haviag an army, 
althouah consisting of our own countrymen, established here without a civil power to provid* 
for and control them'.' This being in time of actual war, a war of revolution, too, what a 
silly set of old fashioned fellows that Provisional Congress must have been to be thus 
sighing for a civil government to control the army, they not knowing, in their simpHcity, 
that it was the undoubted prerogative by the law of nations for the military to control 
the civil power in time of war. Fighting as they were for their lives and liberties, in 
the midst of an actual war of revolution, they trembled at the idea of an army of even 
their own countrymen, because there was no adequate civil power to control it. So little 
of this fear of military sway is there in Mr. Adams, that he contends the military right- 
fully does and should overmaster and control the civil authority in time of war from in- 
Taeion or insurrection." 



-^ 



28 

How differently did our fathers act. Martial law was never declared during 
the war of the Revolution, so far as I know. It was not declared during our 
war with Great Britain of 1812, save and except by General Jackson, in a sin,- 
gle instance at New Orleans. The great and good Washington conducted tha 
war of the Revolution without ever resorting to any such extraordinary power. 
Indeed, the temper of the times would have forbidden it. The stern patriot* 
who were engaged in that struggle for civil liberty would not permit su(?h a 
thing to be done ; they would not have countenanced it for a single moment. 
When General Washington resigned his commission at AnnapoHs, on the 23d 
of December, 1783, Thomas Miffiin, President of the Continental Congress, 
addressed him thus: 

"You have conducted the great military contest with wisdom and fortitude, invariably 
regarding the rights of the civil power through all disasters and changes." 

That was the highest compliment which could be conferred on that illustrious 
chief; but in these times we have a president who allows his commanders-in- 
chief to declare martial law in the States; to issue edicts overthrowing the con- 
stitutional rights of the people, and prescribing the qualifications of electors. 
We find them levying forced contributions, not for military purposes, but in the 
way of charity, from the people of one of the States of the Union; and all this 
is borne. Sir, let me tell you that if the representatives of the American people 
submit to such acts, they surrender their Constitution, they surrender their libr 
erties ; and, indeed, in view of all these things, it seems to me that we are yield-; 
ing and throwing away our liberties faster and more submissively than any free 
people ever before surrendered their dearest constitutional and civil rights. I 
will read to the Senate another extract from the speech of Mr. Webpter ou 
Jackson's protest. It so clearly points out the danger to free Governments 
from executive encroachments that he seemed to have looked with prophetic 
vision to these times : • 

"Mr. President, the contest for ages has been to rescue liberty from the grasp of executive 
power. Whoever has engaged in her sacred cause, from the days of the downfall of those 
great aristocracies which stood between king and people to the time of our own indepen- 
dence, has struggled for the accomplishment of that single object. On the long list of 
the champions of human freedom, there is not one name dimmed by the reproach of ad- 
vocating the extension of executive authority. On the contrary, the uniform and steady 
purpose of all such champions has been to limit and restrain it. To this end, all that 
could be gained from the imprudence, snatched from tiie weakness, or wrung from the 
necessities of crowned heads, has been carefully gathered up, secured, and hoarded as 
the rich treasures, the very jewels of libertj\ To this end, pppular and representative 
right has kept up its warfare against prerogative with various success; sometimes writipg 
the history of a whole age with blood, sometimes witnessing the martyrdom of Sydneys 
and Russels, often baffled and repulsed, but still gaining on the whole, and holding wliat 
it gained with a grasp that nothing but its own extinction could compel it to relinquiah, 

"Through all this history of the contest for liberty, executive power has been regarded 
as a lion that must be caged. So far from being the object of enlightened popular trust — 
80 far from being considered the natural protection of popular right — it has been dreaded 
as the great object of danger. 

" Who is he so ignorant of the history of liberty at home and abroad ; who is he from 
whose bosom all infusion of American spirit has been so entirely evaporated. as to put into 
the mouth of the President the doctrine that the defense of liberty naturally results to 
executive power, and is its peculiar duty? Who is he that is generqus afid confidipg 
towards power where it is most dangerous, and jealous only of those who can restrain it.f. 
Who is he that, reversing the order of State, and upheaving the base, would poise the 
pyramid of the political system upon its apex ? Who is he that declares to us, through 
the President's lips, that the security for freedom rests, in ej^^cutiye authority ? Who is 
he that belies the blood and libels the fame of his ancestry by declaripg tljat they, with, 
solemnity of form and force of manner, have invoked the executive power tp come to the 
protection of liberty ? Who is he that thus charges them with the insanity or reckless- 
ness of thus putting the lamb beneath the lion's paw ? No, sir; no, sir. Our security ii^ 
in our watchfulness of ezecittive power. It was the constitution of this department which 



29 

vr&a infinitely the most difficult part in the great work of creating our Government. To 
give the executive such power as should make it useful, and yet not dangerous; efficient, 
independent, strong, and yet prevent it from sweeping away everything by its military 
and civil power, by the influence of patronage and favor — this, indeed, was difficult. 
They who had the work to do saw this difficulty, and we see it If we would maintain 
our sj'Stem, we shall act wisely by preserving every restraint, every guard the Constitu- 
tion has provided. When we and those who come after liave done all that we can do 
and all that they can do, it will be well for us and for them if the Executive, by the 
power of patronage and party, sliaU. not prove aa overmatch for all "tljer branches of the 
Government. 

"I will not acquiesce in the reversal of all just ideas of government. I will not de- 
grade the character of popular representation. I will not blindly confide when all expe- 
rience admonishes to be jealous. / will not trust executive power, vested in a single 
magistrate, to keep the vigils of liberty. 

"Encroachment must be resisted at every step. Whether the consequences be preju- 
dicial or not, if there be an illegal exercise of power, it must be resisted in the proper 
manner. We are not to wait till great mischief come, till the Government is overthrown, 
or liberty itself put in extreme jeopard}-. We should not be worthy sons of our fathers 
were we so to regard questions affecting freedom." 

The eloquent extract just read from Mr. Webster is so full of wisdom and 
truth, so applicable to the times, that I wish the great truths contained in it 
could be indelibly impressed upon the mind of every American citizen. The 
principles so eloquently and forcibly set forth by Mr. Webster are utterly at 
war with Mr. Adams's heresy on martial law. 

This doctrine of martial law has not existed in England for two hundred 
years. I have examined every book on martial Law that I could find. Samu- 
el's on Military Law (page 188) says: 

"The military state receives its laws, as it has been observed, but in a rude and unpol- 
ished form, nevertheless with all their rough intrinsic value, in the first instance, from 
Parliament, through the medium of an annual statute — the mutiny act." 

The British Parliament passes the mutiny act annually, and it passes the 
army appropriations annually. They guard the military more scrupulously 
than we do. Uader our Constitution we can make our appropriations for two 
years. It was decided distinctly by Lord Loughborough, in a case to which I 
have alluded, in 2 Henry, Blackstone's Reports, that the doctrine has not ex- 
isted in England since the petition of right. I have the petition of right here, 
but I shall not trouble the Senate by reading the clauses that prohibit martial 
law. In Grant's case, reported in 2 Henry Blackstone's Reports, Lord Lough- 
borough said : 

"The suggestion begins by stating the laws and statutes of the realm respecting the 
protection of personal liberty. It goes on to state that no person ought to be tried by a 
court-martial for any offense not cognizable by martial law, and so on. In the prelimi- 
nary observations upon the case, my brother, Marshall, went at length into the history 
of those abuses of martial law which prevailed in ancient times. This leads me to an 
observation that martial law, such as it is described by Hale, and such also as it ia 
marked by Mr. Justice Blackstone, does not exist in England at all. Where martial law 
is established and prevails in any country, it is of a totally different nature from that 
which is inaccurately called martial law, merely because the decision is by a court-mar- 
tial, but which bears no affinity to that which was formerly attempted to be exercised 
in this kingdom, which was contrary to the constitution, and which has been for a cen- 
tury totally exploded." 

All the martial law we have here, is that which necessarily arises under our 
articlss of war. It is a law of Congress, and Congress alone can make it. If 
you claim any'martial law outside of that, you overthrow the Constitution of your 
fathers. It is settled in England that "martial law as it exists at present in this 
kingdom, forms a part of the law of the land. It is enacted by the same authority 
which is the origin of all the statutory regulation." (Tyler on Military Law, 
p. 105.) Scott on Military Law asserts the doctrine held by Tyler, and it ia 



30 

declared from the highest authority that {he power to declare martial law has 
been repudiated in England for two hundred years. Mr. Wharton says, in the 
definition I read some time since, that it is inconsistent with the petition of 
right. I ask the Senate if the clause in the petition of right, or in the bill of 
rights which prohibits martial law, is any more explicit or clear than our Consti- 
tution. Certainly the petition of right is not and the bill of rights is not more 
so; and yet you are willing to surrender the power to a Commander-in-Chief to 
overthrow the Constitution and all the laws of your country, to turn your Con- 
gress out of doors, to repudiate your judges, to overthrow the State constitu- 
tions, to supersede and overthrow all civil authority, to establish a religion, and 
compelling the people to worship in such a form as he may indicate. That is 
the doctrine as announced by the Senator from Massachusetts. I hope it never 
will be again promulgated by an American Senator, or harbored or entertaiaed 
for a single moment by an American citizen. It shows a subserviency to the 
military and executive power that no man bred in the school of American lib- 
erty, and who properly appreciates constitutional freedom, should ever for a 
moment entertain. It is a doctrine that should be avowed only by despots and 
tyrants, and asserted and proclaimed only by those who are willing to be the 
slaves of tyrants. 

Senators, if you maintain this Un^on at all, you must do it through the in- 
strumentality of the Constitution. I have before said that the Union without 
the Constitution was worthless. The Union is only to be admired, only to be 
loved, because of the broad, the strong, the impenetrable shield ihat the Con- 
stitution throws around the rights and the liberties of the people. You may 
adniiic the country for its wide extent, its broad acres, its magnificent rivers, its 
noble seas, its gigantic mountains, but you can only love it because of its Con- 
stitution, for that secures to us all our rights ; and while w^ defend it, while we 
protect it, while we maintain it against every usurper, whether he be high or 
low, as American Senators and the descendants of freemen should do, all will 
be well, but if we relinquish it, the saddest disasters will follow. 

In 1851 Mr. Webster, the emioent statesman of Massachusetts, a man who 
was not diiven off by a single idea, a man who studied the Constitution, who 
expounded the Constitution with an ability, with a force, with a power, with a 
cogency, and with a lucidness that perhaps was unequalled by any of our states- 
men, said : 

"If I have attempted to expound the Constitution, I have attetspted to expound that 
which I liave studied with diligence and veneration from ray early manhood to the present 
day. If I have endeavored to defend and uphold the Union of the States, it is because mj 
fixed judgment and nij' unalterable affections have impelled nie, and still impel me, to re- 
gard tluit Union as the only security for general prosperity and national glory. Yes, gen- 
tlemen, the Constitution and the Union! I place them together. If they stand, thej 
must stand together ; and if they fall, they must fall together. 

" Tliere are some animals that live best in the fire, and there are some men who de- 
light in heat, smoke, combustion, and even general conflagration. They do not follow 
the things which make for peace. They enjoy only controversy, contention, and strife. 
Have no communion with such persons, either as neighbors or politicians. You have no 
more right to say that slavery ought not to exist in Virginia, than a Virginian has to say 
that tliivery ought to exist in New Hampshire. This is a question left to every State to 
decide for itself; and if we mean to keep the States together, we must leave to every 
State this power of deciding for itself." 

These are the words of a wise man and a great man ; and he justly warns 
you against the results of such a course as is indicated in that brief sentence. I 
tell you now. Senators, beware of these one-idea men, whether they are poli- 
ticians or divines. Their teachings have done no good. Let us take warning 
from and follow the wise teachings of the great Webster, and the illustrious 
fathers who went before him. They have taught us that we should resist all 



31 

encroachmeuts upon the Constitution at every hazard, and that the military 
power should be kept in strict subordination to the civil authority. 

It is now proposed under the war power, as it is termed by some here^ to 
overthrow every vestige of the Constitution, to plare our rights and liberties in 
the hands of a single man, to make his will law. That is the doctrine expounded 
by the Senator from Massachusetts. We have already, in my humble judg- 
ment, suffered enough infractions of the Constitution to be committed without 
a just and manly rebuke of the usurpers, without now disposing of it by whole- 
sale, by surrendering to one man the power to overthrow our system of gov- 
ernment. What have we seen within the last year ? The President of the 
United States has added thousands of men to your regular Army and to your 
Navy without warrant of law, usurping the powers of Congress, which alone 
has a right to raise armies and provide a navy; and money has been taken from 
the Treasury without warrant of law to bring the armies unlawfully raised into 
the field. The writ of habeas corpus has been suspended; citizens have been 
seized without charge and without warrant, although the Constitution says that 
they shall only be arrested on warrant and for probable cause, Men have been 
taken from their homes and hurried to distant forts. Hundreds of citizens of 
my own State, some of them men of the highest character and standing, have 
been confined for months in your northern bastile without charge, without war- 
rant, who have begged all the time to be confronted with their accusers, who 
have asked to be tried by the courts, but the usurpers of your Constitution, said 
no. Your Secretary of State issued his order, and men who wete his peers in 
every respect — Governor Morehead, Mr. Stanton, and other gentlemen whom 
I could name — were hurried to your forts and kept there without law, without 
warrant, and have since been released, not by virtue of law, but by the will of 
your Secretary. We have seen the ofiBcials of a large city in a neighboring 
State — the police commissioners of Baltimore — seized in a similar way by the 
military authorities. They presented their petition to the Senate, demanding 
that they be either released or handed over to the civil tribunals to be tried, 
protesting their innocence; and what was the result? Only two members of 
the Judiciary Committee were in favor of reporting anything for their relief. 
I reported a preamble and resolution declaring that they should be immedi- 
ately released, or handed over to the civil authorities for trial; it went on 
your calendar last summer, and has remained there ever since; and some ten or 
twelve votes were the most I could ever get to take it up for consideration. 

What else has been done ? The Constitution guaranties liberty of speech and 
freedom of the press. The freedom of the press, which I had been taught to 
believe was the palladum of our liberties, and formidable only to tyrants, baa 
been overthrown ; papers advocating certain views have been denied circulation 
through the mails. All this has been done under the plea of necessity, which 
has been the tyrant's plea the world over. We find here that the chosen men 
of the people and the States, who are placed on the watch-tower of liberty as 
defenders of the Constitution, have so far failed to ^peak, as they should, in 
trumpet tones against those who thus overthrow the Constitution and the lib- 
erty of the people. Would our fathers have thus acted ? No, sir, no ; they, 
as became the representatives of a great and free people, would have spoken 
boldly and fearlessly in their places; they would have passed their resolves in 
condemnation of this abridgment of the rights of the people and this overthrow 
of constitutional liberty. We, however, do not. I made one effort, but it passed 
unheeded. If God spares me, I will try once more to get up the resblution"to 
which I allude. For slighter violations of the constitution of Great Britain 
our English ancestor brought the head of one king to the block, and sent 
another a wanderer and an exile from his throne and his kingdom. 

A wise man of Greece once said, that was the best Government where a 



'^ 



32 

wrong done to the poorest citizen was an insult to the whole Stale. Here, in 
this once free, happy, and prosperous country, we appreciated the maxim of the 
Grecian sage ; but now we see, with apparent indifference, many of our most 
distinguished citizens seized without warrant, without charge against them, torn 
from their homes and families, hurried to distant prisons, and there kept for 
months in close confinement, all the time protesting their innocence, and de- 
manding a trial in accordance to the Constitution and laws of the country, 
which was refused them. Some have been released, not by the law, but by the 
will of the usurpers who imprisoned them ; others still languish in the prisons, 
and Congress has not dared to rebuke those who have thus denied to citizens 
their constitutional rights. 

The right of the people to keep and bear arms is secured by the Constita- 
tiob. The right to be free from unreasonable seizures and searches is declared. 
These rights have been disregarded. Indeed, almost every one of the greit 
privileges which the Constitution declares belong to the citizen has been over- 
thrown. Not content with that, the astounding heresy is now avowed that you 
must give up the entire Constitution and laws of the United States and all tHe 
institutions of the States to the will of the President and to his command'6rs, 
under this assumed power to declare martial law. Iti the name of the liberties 
of a great people, in the name of the venerated Constitution of my country, I, 
for one, protest against all these things. 

I know, Senators, that my loyalty to the Constitution of my country has 
<Jaused me tcwbe suspected of disloyalty to the Union of our fathers ; but I care 
not what suspicions may be entertained, I, for one, while I ara here, will speak 
what I believe; I will utter language becoming a Senator representing a brave 
and a free pf ople. I will fearlessly utter my sentiments And denounce all who 
endeavor to overthrow the Constitution of my country, which they and I aire 
bound by oath to support, and I will let consequences take care of themselves. 
I know that in these times, perhaps it may be said that the very speech I hftVe 
made to-day is an evidence of treason. Sir, if loyalty to the Constitution of 
my country be treason, then am I a traitor. I have been loyal to that Cottstf- 
tution as I underetand it, and I understand it only as our wisest and most illiis- 
trious fathers interpreted it. I shall continue in my place to denounce eVery 
encroachment on the Constitution of my country, I trust always in a becorirting 
manner, and in such a way as not to exhibit any hai'sh or acrimonious feelings 
towards Senators who differ from me ; but I m6an in a manly, calm way to 
denounce every encroachment on the Constitution of my country and the hber- 
ties of the people, let the consequences be what they may. If I did leSs'I 
should not discharge my conscientious duty. I intetld, above all things, to Be 
on good terms with myself; I will do nothing but what I think is right. Doilig 
that, I am willing to submit my action to the judgment of my countryrrlen. In 
the present distempered state of the public mind I will, I have no doubt, re- 
ceive the harsh censure of some ; but in after time I expect nay rictioii to be 
..approved by those who. love constitutional liberty. 
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